We rarely discuss criminal cases. We make an exception here because the court of appeals focused on an Arizona Supreme Court civil case when considering the retroactive application of an amendment extending the statute of limitations. We also consider a homestead exemption appellate opinion from a few weeks ago that relied upon the same Arizona Supreme Court decision: Hall v. A.N.R. Freight System, Inc., 149 Ariz. 130 (1986). Vergara committed sexual assault and kidnapping in 1991. But he was not identified as a suspect. At that time, the criminal statute for these offenses was seven years. A.R.S. § 13-107. In 1997, however, the legislature amended the criminal statute of limitations stating, “The period of limitation does not run for a serious offense. . . during any time when the identity of the person who commits the offense or offenses is unknown.” Vergara’s identity was unknown until 2018, when a cold case DNA analysis from the victim identified his DNA in a database. In 2021, he was indicted and was later convicted. Vergara contended the amendment extending the statute of limitations should not be applied retroactively and quoted the Arizona Supreme Court’s decision in Hall that there may be a fully vested right in a statute when a defendant “so substantially relied upon that retroactive divestiture that retroactive divestiture would be manifestly unjust.” The court of appeals rejected this:

Assuming Hall, a civil tort case, applies, our supreme court there stated that “[a]ny substantial reliance argument raised by a defendant must focus on actual reliance at the time of the litigated occurrence, not upon any subsequent hope or expectation that the law will remain static” until the right vests. The court determined the defendant had not “substantially relied on the contributory negligence defense, in part, because, “the existence or lack of such an affirmative defense has no effect on the everyday conduct of individuals.”

A criminal would be hard-pressed to demonstrate actual reliance when committing a crime. We are aware of other civil cases discussing whether there is a substantive vested right in a statute of limitations under fair notice and due process. E.g., Chenault v. U.S. Postal Service, 37 F.3d 535, 537 (9^th Cir. 1994). This is “because to do so would alter the substantive rights of a party and increase a party’s liability.” Id. “Extending a statute of limitations after the pre-existing period of limitations has expired impermissibly revives a moribund cause of action.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 950 (1997). Simply because a new statute of limitations is created does not necessarily mean that a claim “can never be revived by a subsequent legislative extension of that period of limitations.” Chevron Chemical Co. v. Superior Court, 131 Ariz. 431, 434-40 (1982). For example, a change in a statute of limitation would not violate a person’s due process rights if the statute lengthens a statute of limitations before the time has run, as in this case. A statute violates a person’s due process rights when it “attach[es] new legal consequences to events completed before its enactment.” San Carlos Apache Tribe v. Superior Court ex rel. Cty. of Maricopa, 193 Ariz. 195, 205-06 ¶¶15-16 (1999) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)) (Landraff is cited in ¶ 32 of this opinion). “In other words, legislation may not disturb vested substantive rights by retroactively changing the law that applies to completed events.” Id. (citing Hall v. A.N.R. Freight System, Inc., 149 Ariz. 130, 139 (Ariz. 1986)). A “vested right ‘is actually assertable as a legal cause of action or defense or is so substantially relied upon that retroactive divestiture would be manifestly unjust.’” Id. As the court of appeals held here, Vergara never asserted and did not have any colorable argument of substantial reliance or that the statute’s application was manifestly unjust.

The reference to Hall brings up another Division 2 case from a few weeks ago. Reilly v. Canale, (D1 3.3.25), the court of appeals considered when substantive rights vest. The rights in the judgment vested before the statute was amended increasing the homestead exemption from $250,000 to $400,000. The plaintiff had obtained a judgment before the statute was enacted, and the court held the judgment was a vested or matured right. But, the inquiry did not end there. The right to satisfy the judgment through a forced sale and writ of execution had not matured. This right is procedural and was not preserved under the statute’s savings clause that states the amendment “does not affect rights and duties that matured” before its effective date.  That seems awkward. Bottom line: the debtor gets the $400,000 exemption. In looking again at Hall, we note it has been cited 115 times. We did not know it was so popular so we will re-read it.

The court of appeals flounders while interpreting a residual clause. We suggest a better solution: toss the residual clause as void for vagueness.

The plaintiffs were sexually abused by their father, who later committed suicide while awaiting his criminal trial. Mom went to prison for allowing and not reporting the abuse. The plaintiffs sued the church they attended and individuals at their church, including Shaunice Warr, who was their Sunday school teacher and occasional babysitter. After agreeing with the trial court that a Sunday school teacher or occasional babysitter owes no common law duty, the court considers whether the mandatory reporter statute, A.R.S. § 13-3620, creates a separate statutory duty. The statute defines a mandatory reporter as 1. Any physician, physician’s assistant, optometrist, dentist, osteopathic physician, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient; 2. Any peace officer, child welfare investigator, child safety worker, member of the clergy, priest or Christian Science practitioner. 3. The parent, stepparent or guardian of the minor. 4. School personnel, domestic violence victim advocates or sexual assault victim advocates who develop the reasonable belief in the course of their employment. 5. Any other person who has responsibility for the care or treatment of the minor. The court of appeals interprets this last category as including a Sunday school teacher or occasional babysitter.

The court does not discuss actual evidence, although the case was decided on summary judgment. “[T]he question of whether Warr was ever responsible for the care of the Does, and therefore owed them a duty under the statute, depends on underlying factual questions regarding the nature and extent of their relationship. The record before us is not sufficient to address that question.” Is the court telling us its statutory interpretative exercise may be for naught because the facts may not support a duty? The court further holds that because the mandatory reporter statute might support a duty, the separate claims for negligent and intentional infliction of emotional distress remain. That statement needs further explanation.

The dissent disagrees with the majority interpretation of “any other person.” The word “other” suggests the individual should be in a similar category as those listed. The dissent questions an expansive definition broader than the listed categories. This is a criminal statute; it is less than precise, and the consequences are serious. The dissent interprets the clause as requiring a professional relationship, as did the trial court.

link to opinion

The Arizona Supreme Court upholds judicial immunity for a constable serving a writ of eviction. A constable cannot be sued for negligence or gross negligence. The writ statute, A.R.S. §11-449, imposes liability when a constable is “guilty of any misconduct” but this imposes liability only for intentional wrongful acts such as a failure to comply with the court’s command to execute the writ. The court differentiates by giving an analogy: “Gross negligence is playing with matches near a dry forest with a burn ban in effect: reckless, irresponsible, without regard for others, and with a high probability of substantial harm. Misconduct, on the other hand, is the intentional act of lighting a match with the purpose of causing a wildfire.” Because Fox alleged only negligence and gross negligence, she cannot overcome immunity. The court uses, as we saw a couple of years ago in Matthews, corpus linguistics as a tool in ascertaining what “guilty of misconduct” meant when the statute was enacted. This gives the opinion an uncomfortable feeling, which Justice Timmer highlights in her concurring opinion. But we are even more uncomfortable with what she suggests. Justice Timmer suggests retaining competing corpus-linguistic experts when interpreting statutes. To borrow from Chief Justice Marshall, it isn’t quite “emphatically the province and duty of the judicial department to say what the law is.”