Arizona Court of Appeals Division One Holds That Repeal of Statute Providing Right to Jury Trial In Parental Rights Severance Proceedings Does Not Apply Retroactively To Deny Jury Trial to Parents Who Had Requested Jury Trial Prior to the Repeal.

Prior to January 1, 2007, Arizona Revised Statutes (“A.R.S.”) § 8-223 provided that “[a] hearing to terminate parental rights . . . shall be tried to a jury if a jury is requested by a parent, guardian or custodian whose rights are sought to be terminated.” However, section 8-223 included a “delayed repeal clause” stating that the statute remained in effect only until January 1, 2007. On September 26, 2006, the Arizona Department of Economic Security (“ADES”) filed a petition to terminate the parental rights of Vanna C. and Gabriel T. (“Parents”). Sometime prior to January 1, 2007, the Parents requested a jury trial pursuant to A.R.S. § 8-223. The trial was then set for January 12, 2007. Noting that the trial was scheduled to occur after the automatic repeal of section 8-223, ADES argued that the Parents were no longer entitled to a jury. The trial court rejected this argument, concluding that because the motion to terminate parental rights and the request for a jury trial were both filed prior to January 1, 2007, the Parents retained their right to a jury trial, despite the fact that the hearing was scheduled to occur after the jury trial statute had been repealed. ADES then filed a special action petition with the Court of Appeals. The Court of Appeals accepted jurisdiction and denied relief.

On appeal, ADES argued that the plain language of A.R.S. § 8-223 clearly indicates the Legislature’s intent to grant jury trials only for those termination hearings that occur prior to January 1, 2007. The Court rejected this argument, holding that although the statutory language unambiguously establishes the Legislature’s intent to repeal the jury trial provision for termination proceedings filed after January 1, 2007, nothing in the statutory language indicates what the legislature intended with respect to pending cases. The Court further noted that, under Arizona law, statutes may not apply retroactively unless such application is expressly declared within the statute itself. See A.R.S. § 1-244. The court found that A.R.S. § 8-223 contained no such provision. ADES argued, however, that even in the absence of such express language, “statutory changes in procedures or remedies may be applied to proceedings already pending except where the statute affects or impairs vested rights.” Opinion at ¶ 11 (quoting Wilco Aviation v. Garfield, 123 Ariz. 360, 362, 599 P.2d 813, 815 (App. 1979)). While acknowledging this exception, the Court rejected ADES’ contentions that the repeal of section 8-223 affected a mere procedural change and that the rights implicated had not yet vested in the Parents. Rather, the Court concluded that in passing section 8-223 the Legislature intended to provide a substantive right to a jury trial where none had existed before. Moreover, citing Brunet v. Murphy, 212 Ariz. 534, 539, 135 P.3d 714, 719 (App. 2006), the Court held that a right vests the moment the holder chooses to assert it. Thus, in the present case, the right to jury trial provided by A.R.S. § 8-223 vested in the Parents upon the Parents’ assertion of that right through their request for a jury trial. Because the Parents, in this case, had requested a jury trial prior to January 1, 2007, their right to such a proceeding had both accrued and vested prior to the statute’s repeal and could not be abrogated by a subsequent act.

Finally, the Court noted that the general savings statute, A.R.S. § 1-249 provides that “[n]o action or proceeding commenced before a repealing act takes effect, and no right accrued, is affected by the repealing act.” Although the Court declined to determine exactly when the right to jury trial had accrued in this case, it had clearly accrued at the time it vested in the parents and prior to the January 1, 2007 repeal of section 8-223. Thus, the repeal could not retroactively deprive the parents of their right to a jury trial.

Judge Ehrlich authored the unanimous opinion joined by Presiding Judge Winthrop and Judge Weisberg.