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Devries v. State - 5/22/2008

Arizona Court of Appeals Division One Holds that the Statute Requiring Service on the Attorney General, Speaker of the House of Representatives, and President of the Senate Whenever a State Law Is Alleged to be Unconstitutional Applies to Lawsuits Filed Before Its Effective Date, Applies to Facial Constitutional Challenges First Pressed on Appeal, and Applies to Non-Declaratory Judgment Actions.


In 2006, the Arizona Legislature amended A.R.S. § 12-1841(A) to read as follows:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. . . . In any proceeding in which a state statute, ordinance, franchise or rule is alleged to be unconstitutional, the attorney general and the speaker of the house of representatives and the president of the senate shall be served with a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served and shall be entitled to be heard.

The primary result of the amendment is to require service upon the Speaker of the House of Representatives and the President of the Senate, in addition to the Attorney General, when a state law is challenged on constitutional grounds.

In 2003, Appellant Devries sued the State for wrongful death and, in response, the State asserted qualified immunity under A.R.S. § 12-820.02(A)(7).  Devries, in turn, claimed that the qualified immunity statute is unconstitutional.  The trial court ruled that the State could assert qualified immunity at trial and the jury returned a verdict in favor of the State.  On April 26, 2007, after the Legislature amended § 12-1841, Devries filed an appeal, again arguing that the qualified immunity statute is unconstitutional.

Two days before the amendment’s effective date, Appellant Green filed a complaint for declaratory relief, alleging that a particular state tax statute is unconstitutional.  The trial court granted the Attorney General’s motion to dismiss.  On May 14, 2007, also after § 12-1841’s effective date, Green filed an appeal and again asserted that the tax statute is unconstitutional.

TheArizonaAppeals Court explained that although the Legislature did not expressly make the 2006 amendment to § 12-1841 retroactive, its requirements could still apply retroactively so long as the statute is merely procedural.  Because requiring service upon the Speaker of the House and the President of the Senate does not affect the underlying right to raise a constitutional challenge or any other right, the 2006 amendment is merely procedural and thus applicable to actions filed prior to its effective date.

Next, the Court held that the wording of § 12-1841 is broad enough to apply to assertions of unconstitutionality made during appellate proceedings.  This stems from the fact that the statute requires service of “any court orders,” “[i]n any proceeding,” and when the assertion of unconstitutionality is made “in a . . . document other than the pleading, motion or document that initiated the proceeding.”  As a result, the Attorney General, Speaker, and President must be served even when an assertion of unconstitutionality is made for the first time on appeal. 

Finally, the Court ruled that the service requirement contained within the third sentence of § 12-1841(A) is not limited to actions where “[d]eclaratory relief is sought.”  This is because an allegation of unconstitutionality triggers the service requirement, not the relief sought, and the Legislature’s recognition that an assertion of unconstitutionality could occur within a “motion or other document” suggests that it did not just have declaratory relief - which is primarily sought through pleadings - in mind.

Judge Norris authored the opinion in which Judges Timmer and Brown concurred.   

Posted On: 5/28/2008