                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                      NIKOLAS CROSBY-GARBOTZ,
                              Petitioner,

                                     v.

 HON. HOWARD P. FELL, JUDGE PRO TEMPORE OF THE SUPERIOR COURT OF
       THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA,
                         Respondent Judge,

                           STATE OF ARIZONA,
                           Real Party in Interest.

                           No. CR-18-0050-PR
                          Filed February 5, 2019

         Special Action from the Superior Court in Pima County
                  The Honorable Howard P. Fell, Judge
                           No. CR20165511-001
                               REVERSED

             Opinion of the Court of Appeals, Division Two
                       244 Ariz. 339 (App. 2017)
                              VACATED

COUNSEL:

Richard L. Lougee, Tucson, and Bradley A. TenBrook, Markus W. Risinger
(argued), Woodnick Law, PLLC, Phoenix, Attorneys for Nikolas Crosby-
Garbotz

Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy
County Attorney, Tucson, Attorneys for State of Arizona

Amy Knight, Kuykendall & Associates, Tucson, and Carol Lamoureux,
Hernandez & Hamilton, PC, Tucson, Attorneys for Amicus Curiae Arizona
Attorneys for Criminal Justice

Timothy J. Agan, Lindsay Herf, Arizona Justice Project, Phoenix, Attorneys
for Amicus Curiae Arizona Justice Project


                                     1
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER and BOLICK
joined. JUSTICE TIMMER, joined by JUSTICES GOULD and LOPEZ,
dissented.

CHIEF JUSTICE BALES, opinion of the Court:

¶1             Issue preclusion, also known as collateral estoppel, precludes
relitigating an issue of fact in a later case when, in a previous case, the same
issue was “actually litigated, a final judgment was entered, and the party
against whom the doctrine is to be invoked had a full and fair opportunity
to litigate.” Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573 (1986). We
hold that issue preclusion may apply in a criminal proceeding when an
issue of fact was previously adjudicated in a dependency proceeding and
the other elements of preclusion are met. We find that those elements are
met in this case.
                                          I.

¶2            On July 5, 2016, Nikolas Crosby-Garbotz (“Crosby”) stayed
home with his five-month-old baby (here referred to as “C.C.”) while Lacy
Crosby (“Mother”) went to work. C.C. became fussy and later had a seizure
and appeared dazed and went limp. Crosby called 911. C.C. was taken to
the hospital, where she was diagnosed with subdural hematoma, bilateral
retinal hemorrhaging, and retinoschisis. She did not have a skull fracture
or trauma to her neck or upper body.

¶3           Days later, the State, through the Department of Child Safety
(“DCS”), took temporary custody of C.C., and on July 13, 2016, DCS filed a
dependency petition alleging that C.C. was dependent as to Crosby because
he abusively shook her to the point of causing bleeding in her brain and
eyes. DCS also alleged C.C. was dependent as to Mother because she was
unable to protect C.C. from Crosby.

¶4             On November 10, 2016, the dependency trial began and lasted
for eleven nonconsecutive days, with the juvenile court taking the matter
under advisement on February 16, 2017. While the dependency hearing
was ongoing, a grand jury on December 15, 2016, returned an indictment
against Crosby alleging child abuse under A.R.S. §§ 13-3623(A) and 13-
3601. Specifically, the State charged Crosby with one count of child abuse
alleging that:

                                       2
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

              on or about the 5th day of July, 2016, NIKOLAS
              CROSBY-GARBOTZ committed child abuse by
              intentionally or knowingly causing physical injury to
              C.C., a child less than fifteen years of age, under
              circumstances likely to produce death or serious
              physical injury, to wit: BY CAUSING BRAIN
              DAMAGE AND RETINAL BLEEDING AND
              RETINOSCHISIS, in violation of A.R.S. § 13-
              3623(A)(1), 13-3601.


¶5            From July 2016 through March 2017, C.C. was not in Crosby’s
or Mother’s care due to the pending dependency petition. On March 8,
2017, the juvenile court issued its ruling, dismissed the dependency petition
as to both parents, and returned C.C. to Mother and Crosby’s care. The
judge ruled that DCS had not met its burden of proof in establishing a
dependency, expressly finding that “the Department has not met its burden
of proving by a preponderance of the evidence that Mr. Crosby inflicted
physical injury, impairment of bodily function, or disfigurement to [C.C.]”
and “the Court has found that it is more likely than not that [Crosby] did
not injure [C.C.].” The State did not appeal the dependency judgment.

¶6            In May 2017, Crosby moved to remand for a redetermination
of probable cause in the criminal proceeding, which the trial court denied.
Crosby then moved to dismiss, arguing that issue preclusion prevented the
State from relitigating whether he had abused C.C. on July 5, 2016. After
an evidentiary hearing, the trial judge denied the motion. Crosby sought
special action relief from the court of appeals, which accepted jurisdiction
but denied relief. Crosby-Garbotz v. Fell, 244 Ariz. 339, 340 ¶ 1, 342 ¶ 8 (App.
2017).

¶7             Although the court of appeals noted that most elements of
issue preclusion appeared to have been met, id. at 344 ¶¶ 15–17, it declined
to apply preclusion, id. at 345 ¶ 18. Relying on cases from other
jurisdictions, the court held in blanket fashion that preclusion should not
apply in these circumstances because the state might forego dependency
proceedings if it were precluded from relitigating issues in a later criminal
proceeding, or it might instead present its criminal case in the dependency
proceeding which “could unnecessarily complicate and delay the
adjudication, placing an undue burden on the juvenile court system.” Id. at

                                       3
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

347 ¶ 28. The court also believed that “the distinction between juvenile and
criminal proceedings would be impermissibly blurred.” Id. Finally, the
court refused to adopt a case-by-case approach to applying issue preclusion
in this context. Id. ¶ 29.

¶8            We granted review because this case presents recurring issues
of statewide importance. We have jurisdiction under article 6, section 5(3)
of the Arizona Constitution.
                                   II.

¶9          “Application of issue preclusion is an issue of law, which we
review de novo.” Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, 180 ¶ 6
(2007).

¶10            Issue preclusion serves to “protect[] litigants from the burden
of relitigating an identical issue” and to “promot[e] judicial economy by
preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322,
326 (1979). As our courts have noted, the doctrine seeks to avoid the basic
unfairness associated with duplicative, harassing litigation. See Circle K
Corp. v. Indus. Comm’n, 179 Ariz. 422, 426 (App. 1993).

¶11             Arizona has long recognized that “when the second case is
upon a different cause of action, the prior judgment or decree operates as
an estoppel only as to matters actually in issue, or points controverted,
upon the determination of which the judgment or decree was rendered.”
MacRae v. Betts, 40 Ariz. 454, 458 (1932) (citing Balt. S.S. Co. v. Phillips, 274
U.S. 316, 319 (1927)). This common law doctrine, now termed issue
preclusion, applies when a fact “was actually litigated in a previous suit, a
final judgment was entered, and the party against whom the doctrine is to
be invoked had a full opportunity to litigate the matter and actually did
litigate it” and the fact “was essential to the prior judgment.” Chaney Bldg.
Co., 148 Ariz. at 573; see also Restatement (Second) of Judgments § 27 (Am.
Law Inst. 1982). In criminal cases, we also continue to require mutuality of
parties or their privities as an additional element of issue preclusion, see
State v. Edwards, 136 Ariz. 177, 188 (1983), which is consistent with the
Restatement’s more general issue preclusion rule which applies in a
“subsequent action between the parties,” see Restatement § 27. When one
of these elements is not met, preclusion does not apply. See Kopp v. Physician
Grp. of Ariz., Inc., 244 Ariz. 439, 442 ¶¶ 14–15 (2018) (affirming Chaney and


                                       4
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

refusing to give preclusive effect to stipulated dismissals with prejudice
because no issues were “actually litigated”).

¶12           No previous decision by this Court, however, has considered
whether a finding in a dependency adjudication may have preclusive effect
in a criminal prosecution. On this issue, the State and Crosby disagree on
the application of two issue preclusion cases. In Ferris v. Hawkins, the court
of appeals declined to apply issue preclusion from one administrative
proceeding to a later, different administrative proceeding, finding the two
proceedings involved distinct legal rights and remedies. 135 Ariz. 329, 332
(App. 1983). Fitzgerald v. Superior Court involved a civil forfeiture
proceeding in which the trial court found that the defendant had not
possessed or used the items in question for any criminal activity, and the
court of appeals held that issue preclusion barred the state’s relitigating
those issues in a later prosecution. 173 Ariz. 539, 548 (App. 1992).

¶13            Neither case is dispositive here. Fitzgerald involved a “quasi-
criminal” forfeiture proceeding and a later criminal proceeding. 173 Ariz.
at 545–46. Ferris addressed successive administrative proceedings in which
the state may not have had adequate opportunity and incentive to fully
litigate the issue in question in the first proceeding. 135 Ariz. at 332 n.3.
Neither case determined whether a finding in a non-criminal dependency
adjudication could ever have preclusive effect in a criminal case; nor did
either case adopt a categorical rule applying or rejecting preclusion in the
circumstances presented here.

¶14           In contrast to Fitzgerald and Ferris, here the court of appeals
relied on public policy to adopt a categorical rule barring issue preclusion.
The court recognized that the California Court of Appeals reached a
different conclusion in Lockwood v. Superior Court, 206 Cal. Rptr. 785 (Ct.
App. 1984), but noted that another California appellate panel had refused
to follow Lockwood as inconsistent with intervening California Supreme
Court precedent. Crosby-Garbotz, 244 Ariz. at 345 ¶¶ 19–21, 28. The court
also pointed to opinions from other jurisdictions that either rejected
Lockwood or reached a different result. Id. at 345–47 ¶¶ 22–27.

¶15          As the court of appeals observed, Lockwood “is not
meaningfully distinguishable from the case before us.” Id. at 345 ¶ 19.
There, the state brought a dependency petition against both parents
alleging abuse, and later filed criminal charges. Lockwood, 206 Cal. Rptr.

                                      5
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

at 786. After the juvenile court found no abuse and dismissed the
dependency petition, the parents unsuccessfully sought to invoke issue
preclusion to dismiss the criminal charges. Id. Reversing the trial court’s
ruling, the California Court of Appeal noted that although the dependency
and criminal proceedings involved different purposes, such differences
were “perhaps relevant to res judicata in the broad sense” but “not
necessarily dispositive of the collateral estoppel question.” Id. at 787.
Noting that the issue – whether the parents had abused their child on a
specific occasion – was the same in both proceedings, and the juvenile court
had “expressly found no such abuse,” the court of appeal found all
elements of issue preclusion established and directed the trial court to
dismiss the criminal charges. Id. at 787–88. That same year, Maryland’s
highest court also applied issue preclusion in similar circumstances,
concluding that the state should not be given a second chance to prove
alleged wrongful conduct and cause the defendant “to ‘run the gantlet’ a
second time.” Bowling v. State, 470 A.2d 797, 801 (Md. 1984) (quoting Ashe
v. Swenson, 397 U.S. 436, 446 (1970)).

¶16          Other jurisdictions, however, have refused to apply issue
preclusion in the dependency-to-criminal context. In so holding, courts
have noted various policy reasons, including a concern that the state, in
dependency proceedings, does not perform the “extensive preparation
typically required for felony trials,” State v. Cleveland, 794 P.2d 546, 551
(Wash. Ct. App. 1990), and the fact that the dependency and criminal
proceedings serve “disparate” purposes, People v. Gates, 452 N.W.2d 627,
633 (Mich. 1990), as the juvenile proceeding is meant to protect children
whereas the criminal proceeding’s “ultimate litigated issue” is the
accused’s guilt, People v. Moreno, 744 N.E.2d 906, 912 (Ill. App. Ct. 2001).

¶17             We are not persuaded that these policy concerns justify an
absolute bar on applying issue preclusion. Although criminal charges put
at stake an accused’s liberty, dependency proceedings affect liberty
interests as well – the fundamental right of parents regarding their
children’s upbringing, see A.R.S. § 1-601(A); Kent K. v. Bobby M., 210 Ariz.
279, 284 ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)), and
a child’s best interest, including “an interest in a ‘normal family home,’” see
Kent K., 210 Ariz. at 286 ¶ 34 (quoting Santosky, 455 U.S. at 759). Thus, we
reject the suggestion that the state does not take dependency proceedings
as seriously as criminal prosecutions, and we likewise reject the notion that
the state will forego dependency proceedings if issue preclusion may apply.

                                      6
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

See Crosby-Garbotz, 244 Ariz. at 347 ¶ 28; Cleveland, 794 P.2d at 551.
Furthermore, the concern that the state “might be compelled to present its
entire criminal case in the dependency proceeding,” Crosby-Garbotz, 244
Ariz. at 347 ¶ 28, is unavailing. If the state alleges that a child is dependent,
it must present sufficient evidence to establish the necessary facts by a
preponderance of the evidence. See A.R.S. § 8-844(C). If the state has such
a case, it bears the burden of proving it. If the state cannot prove a
dispositive fact under the preponderance standard, it is unlikely to be able
to do so, absent new or additional evidence, in a subsequent criminal
proceeding under the more-demanding standard of beyond a reasonable
doubt.

¶18          Finally, the State argues that public policy counsels against
applying issue preclusion because “[t]he public has a strong interest in the
enforcement of our criminal laws.” But the public also has a strong interest
in the enforcement of the laws regarding the protection of dependent
children. So too do parents have a strong interest in the care and
upbringing of their children, and defendants have a strong interest in
fundamental fairness.

¶19            The purposes of dependency and criminal proceedings are
admittedly different. But issue preclusion and claim preclusion are also
different, and sometimes mistakenly conflated. See Circle K Corp., 179 Ariz.
at 425–26; cf. Hawkins v. Ariz. Dep’t of Econ. Sec., 183 Ariz. 100, 103 (App.
1995) (noting that although issue and claim preclusion “have similar
purposes, they are nevertheless different”). That two types of cases have
different purposes does not affect the application of issue preclusion, but
rather informs the application of claim preclusion. See Lockwood, 206 Cal.
Rptr. at 787. Under claim preclusion, a final judgment may preclude later
litigation of other causes of action based on the transaction or series of
transactions out of which an action arises, considering “whether the facts
are related in time, space, origin, or motivation.” Restatement § 24.
However, issue preclusion is narrower, and applies only to determinations
that were essential to the judgment. See id. § 27. Furthermore, unlike claim
preclusion, issue preclusion requires that the issue be “actually litigated” in
the previous judgment. 4501 Northpoint LP v. Maricopa Cty., 212 Ariz. 98,
102–03 ¶¶ 25–26 (2006).

¶20          Applying preclusion from dependency to criminal
proceedings is consistent with preclusion principles. See Allan D. Vestal,

                                       7
                    CROSBY-GARBOTZ V. FELL (STATE)
                          Opinion of the Court

Issue Preclusion and Criminal Prosecutions, 65 Iowa L. Rev. 281, 340 (1980)
(stating that if burden of proof in prior civil action was lower than required
in criminal case and state cannot meet lower burden, preclusion should bar
attempt by state in criminal case to assert issue found against it in civil
litigation). First, this Court has noted that “[c]ollateral estoppel in criminal
cases is not favored and is applied sparingly.” State v. Goudeau, 239 Ariz.
421, 455 ¶ 134 n.8 (2016) (alteration in original) (quoting State v. Rodriguez,
198 Ariz. 139, 141 ¶ 6 (App. 2000)). This language, which admittedly
described federal rather than state law, suggests that preclusion is available
in criminal cases as well as civil ones. Second, absolutely barring preclusion
in criminal cases is neither supported by our precedent, see, e.g., State v.
Little, 87 Ariz. 295, 304–07 (1960) (adopting issue preclusion in criminal
cases), nor finds favor in the Restatement, see Restatement § 28, cmt. g
(noting that relief from preclusion “must be the rare exception” permitted
“only when the need for a redetermination of the issue is a compelling
one”).

¶21           The elements of issue preclusion serve to alleviate many of
the concerns raised by the court of appeals and the State. If the State did
not have a full and fair opportunity to litigate an issue, then preclusion will
not apply. See Chaney Bldg. Co., 148 Ariz. at 573. Issue preclusion may not
apply, for instance, if a subsequent prosecution is based upon additional,
material evidence of abuse that was not considered in the dependency
proceeding, or if the State were unable to secure an expert witness in the
dependency proceeding. Additionally, preclusion does not apply where
circumstances are different, based on new evidence or events giving rise to
subsequent prosecution. Cf. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz.
345, 349 ¶ 17 (App. 2013) (no issue preclusion of best-interest inquiry in
second proceeding where new evidence was presented nearly a year after
judge found severance would not be in child’s best interest). The party
seeking to invoke preclusion must establish all its elements, and relitigation
will be barred in only exceptional criminal cases.

¶22             The dissent’s observation that dependency and criminal
proceedings are distinct and serve different purposes, ¶¶ 28, 34, does not
support a blanket rejection of issue preclusion (though, as noted above,
¶ 19, it is relevant to claim preclusion). Moreover, the Restatement
illustration cited by the dissent, ¶ 31, is inapposite, as it reflects the rule that
one court’s determination of an issue will not bar relitigation before another
court having “special competency” to decide the issue. See Restatement

                                         8
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

§ 28, cmt. d. The juvenile and criminal divisions of the superior court are
each competent to determine if a child was abused. Applying preclusion
also does not contradict the legislature’s intent; indeed the dissent does not
identify any statement of legislative intent but instead imputes intent based
on its belief that preclusion should not apply. Nor do we obstruct the
executive’s authority to initiate prosecutions. Our opinion does not prevent
the state from pursuing parallel or successive proceedings; it only prevents
the state from relitigating a factual issue that it had a full and fair
opportunity to litigate, which it could not prove by a preponderance of
evidence, and where the related judgment has become final, i.e. any appeals
have been exhausted. This no more infringes on executive prerogatives
than does a judge dismissing a criminal case when the prosecution fails to
present sufficient evidence on an element of a crime. See Ariz. R. Crim. P.
20.
                                      III.

¶23           Having determined that issue preclusion may apply from
dependency to subsequent criminal proceedings, we turn to its application
here. At oral argument, the State conceded that there was a full and fair
opportunity to litigate the issue at hand before the juvenile court, the issue
was essential to that court’s judgment, the issue was actually litigated, and
the judgment was final and valid. These concessions are supported by the
record.

¶24           The State argues that because DCS and the County Attorney
are not the same party, there is no mutuality of parties, and issue preclusion
cannot apply. The court of appeals did not address this argument. See
Crosby-Garbotz, 244 Ariz. at 345 ¶ 18. We conclude that there was mutuality
of parties. The State, acting through DCS and the County Attorney, has
brought its power to bear on Crosby through both the dependency and
criminal proceedings. That different legal offices handle different cases
does not mean that the State is not a party in both actions. The Attorney
General’s Office, which represented DCS in the dependency proceedings,
not only has supervisory authority over county attorneys, see, e.g., A.R.S.
§ 41-193(A)(4), (5), but is also responsible for handling appeals of criminal
cases originally tried by county attorneys, who must furnish that office with
a statement of facts and legal authority for appellate purposes, see A.R.S. §
11-532(B). Cf. Cleveland, 794 P.2d at 549 (holding that the attorney general
and county attorney constituted the same party for preclusion purposes,
noting that “[t]he party against whom . . . collateral estoppel is asserted is

                                      9
                   CROSBY-GARBOTZ V. FELL (STATE)
                         Opinion of the Court

the State of Washington in both cases”); Gates, 452 N.W.2d at 630 (holding
that the Department of Social Services and county prosecutor are the same
party for preclusion purposes based on a “functional analysis”); People v.
Sims, 651 P.2d 321, 332–33 (Cal. 1982) (holding that the district attorney’s
office and a county are the same party for preclusion purposes because they
both act on behalf of the state).

¶25            The State also argues that the issues are not the same because
the two proceedings “are governed by different substantive law and
different procedures.” This argument misses the mark. The precise issue
here is whether Crosby abused C.C. on July 5, 2016, by shaking her, causing
bleeding in C.C.’s brain and eyes. This factual issue was adjudicated in the
dependency proceeding against the State. The same factual issue is the
basis for the criminal charge. The State has not pointed to any additional
evidence it was foreclosed from presenting in the dependency proceeding
that would apply in the criminal case, nor has it indicated any changed
circumstances that would make relitigation appropriate.

¶26            Crosby is using issue preclusion defensively as a shield, not
as a sword. This is not an instance of a defendant attempting to use an
accomplice’s favorable factual determination against the government as
offensive issue preclusion – a situation that would present different
considerations. See State v. Jimenez, 130 Ariz. 138, 139–41 (1981) (refusing to
abandon the mutuality requirement for collateral estoppel in criminal
cases). Here, the State failed to prove in the superior court, at a lower
burden of proof, that Crosby abused C.C. and thereby caused specific
injuries on July 5, 2016. This issue was essential to the dependency
allegations and was fully and fairly adjudicated during an eleven-day trial
with testimony from several expert witnesses (including two experts the
State called). The State then chose not to appeal, making the juvenile court’s
judgment final for purposes of preclusion. In these circumstances, the State
cannot force Crosby to again litigate the same issue.

                                     IV.

¶27           We vacate the court of appeals’ opinion and remand this case
to the superior court to dismiss the criminal charge.




                                      10
             CROSBY-GARBOTZ V. FELL (STATE)
JUSTICE TIMMER, joined by JUSTICES GOULD and LOPEZ, Dissenting

TIMMER, J., joined by GOULD, J. and LOPEZ, J., dissenting.

¶28            Arizona law empowers the state to address alleged parental
child abuse in concurrent ways. The Department of Child Services (“DCS”)
may initiate dependency or termination-of-parental-rights proceedings in
juvenile court, see A.R.S. §§ 8-533 and 8-841 to 8-847, and a prosecutorial
agency may criminally prosecute the parent in superior court, see A.R.S. 13-
3623. The proceedings serve different interests, and the legislature
intended they proceed separately. Applying issue preclusion in the
pending criminal case against Crosby for the common factual issue
adjudicated in the dependency proceeding concerning C.C. interferes with
this legislative structure and the executive’s authority to simultaneously
protect children through dependency proceedings and vindicate society’s
insistence that everyone obey our laws. The application also undermines
the public’s interest and role in criminal justice. I respectfully dissent.

¶29          The doctrine of issue preclusion has several exceptions. See
Restatement (Second) of Judgments § 28 (Am. Law Inst. 1982). Two
exceptions apply here:

       A new determination of the issue is warranted by differences
       in the quality or extensiveness of the procedures followed in
       the two courts or by factors relating to the allocation of
       jurisdiction between them . . . .
       ....
       There is a clear and convincing need for a new determination
       of the issue . . . because of the potential adverse impact of the
       determination on the public interest or the interests of persons
       not themselves parties in the initial action . . . .

Restatement § 28(3),(5); see Hullett v. Cousin, 204 Ariz. 292, 298 ¶¶ 28–29
(2003) (applying Restatement § 28).

¶30           First, a statutory limitation on the juvenile court’s authority in
dependency proceedings compels a conclusion that issue preclusion does
not apply here. See Restatement § 28(3). Although the juvenile court has
exclusive original jurisdiction over dependency proceedings, see A.R.S. 8-
202(B), it has no authority to adjudicate pending criminal charges
concerning events underlying the dependency allegations, see § 8-202(C)(1)
(“[T]he juvenile court shall not consolidate . . . [a] criminal proceeding that

                                      11
             CROSBY-GARBOTZ V. FELL (STATE)
JUSTICE TIMMER, joined by JUSTICES GOULD and LOPEZ, Dissenting

is filed in another division of superior court and that involves a child who
is subject to the jurisdiction of the juvenile court.”). Only the superior court
adjudicating the criminal charges has that authority. Thus, the juvenile
court here had no authority to adjudicate Crosby’s criminal liability, and its
determination that DCS failed to prove Crosby abused C.C. should not
serve to effectively adjudicate the pending criminal charge.                 See
Restatement § 28 cmt. d (stating a compelling reason not to apply issue
preclusion exists if “the legislative allocation of jurisdiction among the
courts of the state may have been designed to insure that when an action is
brought to determine a particular issue directly, it may only be maintained
in a court having special competence to deal with it” and thus “after a court
has incidently [sic] determined an issue that it lacks jurisdiction to
determine directly, the determination should not be binding when a second
action is brought in a court having such jurisdiction”).

¶31          Issue preclusion should not apply here even though the
juvenile court’s determination was necessary to the dependency
adjudication. An illustration in Restatement § 28 supports this conclusion:

       H brings an action for forcible entry and detainer against W
       before a justice of the peace. W defends on the ground that
       the parties are legally married and that under the law of the
       State such an action cannot be maintained between spouses.
       The justice of the peace rejects the defense, ruling that the
       parties are not legally married. A subsequent action for
       divorce is brought between W and H in the domestic relations
       court, which has exclusive jurisdiction over divorce actions.
       The determination in the prior action that the parties are not
       legally married is not conclusive.

Restatement § 28, cmt. d, illus. 9. Like the child abuse issue here, whether
H and W were legally married was properly decided by both courts. And
just as the domestic relations court had exclusive authority over divorce
actions and thus could not be bound by the justice court’s determination of
a common issue, the superior court here has exclusive jurisdiction in the
pending criminal proceedings and cannot be bound by the juvenile court’s
determination that DCS failed to prove that Crosby abused C.C. Although
the juvenile court is part of the superior court and not a different court, as
in the illustration, the illustration is apt. The majority disagrees, asserting
“[t]he juvenile and criminal divisions of the superior court are each

                                      12
             CROSBY-GARBOTZ V. FELL (STATE)
JUSTICE TIMMER, joined by JUSTICES GOULD and LOPEZ, Dissenting

competent to determine if a child was abused.” See supra ¶ 22. I do not
quibble the point, but the legislature has decreed otherwise. By precluding
the juvenile court from adjudicating a related, pending criminal case, the
superior court is required to resolve the charges against Crosby through the
criminal trial process. See Restatement § 28, cmt. d.

¶32            Second, a clear and convincing need exists to permit a new
determination in the pending criminal proceedings because otherwise the
public interest would be adversely affected. See Restatement § 28(5).
Section 8-202(C)(1) reflects a public policy that the superior court is the
exclusive forum to adjudicate criminal charges when the state concurrently
files a related dependency action. Cf. Quiroz v. ALCOA Inc., 243 Ariz. 560,
566–67 ¶ 19 (2018) (recognizing that the legislature has the primary
responsibility to declare public policy). Applying issue preclusion here
frustrates that public policy by allowing the juvenile court to effectively
adjudicate a criminal charge and displace the criminal case. Cf. People v.
Gates, 452 N.W.2d 627, 632–33 (Mich. 1990) (“[T]he purposes of a child-
protective proceeding and a criminal proceeding are so fundamentally
different that application in this instance of collateral estoppel would be
contrary to sound public policy.”); People v. Percifull, 12 Cal. Rptr. 2d 331,
335 (Ct. App. 1992) (refusing to apply issue preclusion in similar
circumstances reasoning, in part, that the dependency proceeding “did not
and could not reach the need, paramount in any criminal proceeding, to
vindicate society’s insistence that every citizen obey the penal laws”).

¶33               Apart from the legislative declaration of public policy
reflected in § 8-202(C)(1), the public has a significant interest and role in the
criminal proceedings that is nullified by the application of issue preclusion
here. A grand jury indicted Crosby under § 13-3623(A)(1) while the
dependency proceedings were pending. The State, representing the
public’s interest, has a right for a jury selected from the public to determine
whether Crosby committed child abuse. See A.R.S. § 13-3983 (requiring
both parties’ consent to waive a jury trial); Phx. City Prosecutor’s Office v.
Ybarra, 218 Ariz. 232, 235 ¶ 14 (2008) (“[Section] 13-3983 requires that in all
criminal cases the right to a bench trial is conditioned on the prosecution’s
consent.”). That right does not exist in dependency proceedings. See Ariz.
R.P. Juv. Ct. 6 (“Proceedings as set forth in these rules . . . shall proceed in
a manner similar to the trial of a civil action before the court sitting without
a jury . . . .”). The public also has a right to observe the criminal proceedings
against Crosby and examine the record, which was not the case in the

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             CROSBY-GARBOTZ V. FELL (STATE)
JUSTICE TIMMER, joined by JUSTICES GOULD and LOPEZ, Dissenting

dependency proceedings. See A.R.S. §§ 8-208(F) (providing that, with
exception, dependency proceeding records “shall not be open to public
inspection”), -525(B) (authorizing the juvenile court to close proceedings to
the public); Ariz. R. Crim. P. 9.3(b) (requiring that all criminal proceedings
be open to the public unless “an open proceeding presents a clear and
present danger to the defendant’s right to a fair trial by an impartial jury”).

¶34            The public’s interests in criminal proceedings cannot be
vindicated in a dependency proceeding. Likely for this reason, issue
preclusion is rarely applied in a criminal case for a factual issue adjudicated
in a civil proceeding. Cf. State v. Edwards, 136 Ariz. 177, 188 (1983)
(explaining that Arizona courts apply preclusion in criminal cases only
rarely because, “[w]hile the concerns of judicial economy may be a
significant factor in applying the doctrine of [issue preclusion] in civil cases,
the ‘public interest in the accuracy and justice of criminal results is greater’”
(quoting Standefer v. United States, 447 U.S. 10, 25 (1980))); Gates, 452 N.W.2d
at 630 (recognizing rarity of “cross-over estoppel,” between civil and
criminal cases); Gregory v. Commonwealth, 610 S.W.2d 598, 600 (Ky. 1980)
(noting that issue preclusion applied “civil to criminal” is “least common”).
Indeed, although the Supreme Court has acknowledged that issue
preclusion can apply in the civil-to-criminal combination, see Yates v. United
States, 354 U.S. 298, 335–36 (1957), overruled on other grounds by Burks v.
United States, 437 U.S. 1 (1978), the Court has yet to do so. And the only
Arizona case to do so was a civil forfeiture proceeding, which is “quasi-
criminal.” See Fitzgerald v. Superior Court, 173 Ariz. 539, 546–48 (App. 1992).

¶35            This is not a case in which the State pursued criminal charges
to get a “second bite at the apple” after failing to prove its case in
dependency proceedings—a scenario that may result in the “rare
circumstance” when issue preclusion should apply. See Lucido v. Super. Ct.,
795 P.2d 1223, 1227 (Cal. 1990) (stating that “the public policies underlying
collateral estoppel,” including “protection of litigants from harassment by
vexatious litigation . . . strongly influence whether its application in a
particular circumstance would be fair to the parties and constitutes sound
judicial policy”). The State indicted Crosby while the dependency
proceedings were pending, and the superior court had exclusive authority
in that circumstance to adjudicate the criminal charge against him through
the criminal trial process. See § 8-202(C)(1). By applying issue preclusion
here, the majority eradicates that authority and bypasses the prosecution
and public’s interest and roles in the pending criminal proceedings.

                                       14
             CROSBY-GARBOTZ V. FELL (STATE)
JUSTICE TIMMER, joined by JUSTICES GOULD and LOPEZ, Dissenting


¶36           To be clear, although issue preclusion rarely applies in the
civil-to-criminal context, I do not advocate a “blanket rule” precluding
application of issue preclusion in all criminal cases or even in those sharing
issues in common with dependency proceedings, as the majority
suggests. See supra ¶ 22. But to accommodate public policy, and
particularly policies underlying § 8-202(C)(1), the court in a criminal case
should always refuse to apply issue preclusion to factual disputes resolved
in concurrently pursued dependency proceedings. I would permit the
criminal case against Crosby to continue. I therefore respectfully dissent.




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