Mascher v. Hon. hancock/gaver

NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SCOTT MASCHER, Yavapai County Sheriff,

Petitioner,

v.

THE HONORABLE CELE HANCOCK,

Judge of the SUPERIOR COURT OF

THE STATE OF ARIZONA, in and for

the County of YAVAPAI,

Respondent Judge,

RUTH ELIZABETH GAVER; STATE OF ARIZONA,

Real Parties in Interest.

No. 1 CA-SA 16-0015

FILED 2-16-2016

Petition for Special Action from the Superior Court in Yavapai County

No. V1300CR201580129

The Honorable Cele Hancock, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Yavapai County Attorney's Office, Prescott

By Benjamin D. Kreutzberg

Counsel for Petitioner

Shaw Law Firm, PLLC, Cottonwood

By Sebrina M. Shaw

Counsel for Real Party in Interest Gaver

Yavapai County Attorney's Office, Prescott

By Patti Wortman

Counsel for Real Party in Interest State

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in

which Judge Patricia A. Orozco and Judge Samuel A. Thumma joined.

J O H N S E N, Judge:

¶1 Ruth Elizabeth Gaver has been detained for several months in

Yavapai County Jail, participating in restoration services pending charges

of aggravated assault, resisting arrest and riot. During a mid-November

2015 status conference, Gaver's counsel said that Gaver had been allowed

use of the jail recreation yard just once and asked the court to order that she

be permitted "some time in the yard." The court ruled from the bench that

Gaver was entitled to daily recreation while detained, and issued an order

that she "shall be allowed outside once a day unless the Jail provides the

Court and Attorneys with documentation as to why Defendant is not

allowed outside once a day."

¶2 The Yavapai County Sheriff, in whose jail Gaver is being

detained, filed a written objection to the order, Gaver filed a written

response, and the Sheriff filed a written reply. After oral argument on

January 2016, the court ruled from the bench, affirming its order and stating

that "not allowing a defendant out once a day is a constitutional violation."

In its subsequent written order, the court ruled Gaver must be permitted to

use the jail recreational area for an hour each day "unless the Court receives

information as to why [Gaver] should not be allowed out of her jail cell and

into the recreational facility once a day."

¶3 The Sheriff filed a petition for special action, asking this court

to vacate the superior court's order. In her response, Gaver urges that we

accept jurisdiction, arguing the petition presents an issue of statewide

importance.

2

MASCHER v. HON. HANCOCK/GAVER

Decision of the Court

¶4 This court accepts jurisdiction of the petition because the

Sheriff, a non-party to the criminal proceeding, lacks an adequate remedy

at law. Ariz. R.P. Spec. Act. 1(a). We grant relief to the Sheriff because the

superior court erred by entering the challenged order in a proceeding to

which the Sheriff is not a party and in the absence of admissible evidence

of a constitutional violation.

¶5 Absent proof of a constitutional violation, "the judiciary has

no authority to usurp the functions of the executive branch." Judd v.

Bollman, 166 Ariz. 417, 419 (App. 1990). "Courts have limited authority to

interfere with a sheriff's duties to maintain and operate the county jails

pursuant to the Arizona Constitution and A.R.S. §§ 11-441(5) and 31-101,

and then only to determine whether specific constitutional violations exist

and in doing so to order narrow remedies to correct those violations." Id.

¶6 A criminal defendant may challenge the conditions of

detention by filing a civil action alleging a violation of her constitutional

rights. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979); Baker v. Rolnick, 210 Ariz.

321 (App. 2005). Gaver, however, has provided no authority, and we are

aware of none, that allows such a claim to be brought in the criminal case.

The Sheriff is not a party to Gaver's criminal proceeding, and whether the

conditions of her confinement violate her constitutional rights is not

properly at issue in that proceeding. The superior court therefore erred in

ordering the Sheriff to allow Gaver daily recreational time.

¶7 The court also erred by ruling without receiving any

evidence. Although the court stated its order was subject to modification

upon new "information" from the Sheriff, a plaintiff alleging a civil rights

claim has the burden to offer admissible evidence sufficient to prove the

violation. See generally Weatherford ex rel. Michael L. v. State, 206 Ariz. 529,

532, ¶ 6 (2003) (when defendant offers immunity defense, plaintiff "bears

the initial burden of proving a violation of a clearly established

constitutional or statutory right"). The court in this case erred by basing its

finding of a constitutional violation solely on a statement by Gaver's

counsel, without receiving any admissible evidence on the matter.

3

MASCHER v. HON. HANCOCK/GAVER

Decision of the Court

¶8 For the reasons stated, the superior court erred as a matter of

law in ordering the Sheriff to permit Gaver an hour in the recreation yard

each day. The court's order to that effect is vacated.

:ama

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