The Supreme Court grants review in two cases during its April conference.

April Conference Report

On April 3, 2019, the Justices of the Supreme Court granted review in two new cases:

1.  State v. Martin, CR-18-0380-PR.  In State v. Martin, a jury declined to convict a man of first-degree murder, opting instead to convict him of the lesser included offense of second-degree murder.  After the Court of Appeals vacated the conviction for instructional error, the trial court granted the State’s request to re-try the man for first-degree murder, the greater offense.  This time, the jury convicted the man of first-degree murder, and the Court of Appeals affirmed.  In some cases, the failure to convict on the greater offense operates as an acquittal, triggering double jeopardy protections.  In other cases—as with a hung jury—it does not.  The Supreme Court accepted review of only one of the three questions presented in the Petition for Review:  “Was the [State] barred by double jeopardy from re-trying [the man] for first-degree murder after a conviction for second-degree murder in a prior trial?”  [Petition for Review] 

2.  City of Phoenix v. Orbitz Worldwide, CV-18-0275-PR.  In City of Phoenix v. Orbitz Worldwide, the tax court found that although online travel companies that facilitate hotel bookings are not taxable as “hotels,” they are taxable as “brokers.”  The Court of Appeals affirmed, finding online travel companies’ service fees subject to taxation.  The Court of Appeals also reversed the tax court’s conclusion that the tax could not be applied retrospectively.  The Supreme Court accepted review over the following issues presented in the Petition for Review and Cross-Petition for Review: 

“Did the court of appeals err in its rulings:

(a) affirming partial summary judgment and holding that the [online travel companies] are ‘brokers’ under Model City Tax Code (‘MCTC’) § 444 and therefore their service fees are subject to municipal taxation;

(b) reversing partial summary judgment and holding that because the [online travel companies] are not ‘hotels,’ they are not subject to taxation under MCTC § 447; and

(c) reversing the superior court’s ruling that the Cities may not assess tax, penalties, and interest for tax years before 2013.”  [Petition for Review] [Cross-Petition for Review]

Upcoming Events

• April 30, 2019:  The Supreme Court will consider pending petitions for review and pending motions.
• May 7, 2019:  The Supreme Court will hear oral arguments in three cases: (1) State v. Nunez-Diaz, CR-18-0514-PR; (2) Sky Harbor Hotel Props. v. Patel Props., CV-19-0033-CQ; and (3) Morris Anderson & Assocs. v. Redeye II LLC, CV-19-0034-CQ.
• May 9, 2019:  The Supreme Court will hear oral argument in State v. Martin, CR-18-0380-PR.
• May 28, 2019:  The Supreme Court will consider pending petitions for review and pending motions during its May conference.
• June 4, 2019:  The Supreme Court will hear oral argument in City of Phoenix v. Orbitz Worldwide, CV-18-0275-PR.

News and Notes

• Governor Ducey has not yet filled the vacancy on the Arizona Supreme Court created by Justice Pelander’s retirement.  The Governor must choose from the list of five nominees selected by the Commission on Appellate Court Appointments.
• Chief Justice Bales announced his retirement from the Supreme Court effective July 31, 2019.  The Commission on Appellate Court Appointments is not yet accepting applications for this vacancy.