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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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




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