                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                            E.H., Petitioner,

                                   v.

THE HONORABLE DAN SLAYTON, Judge of the SUPERIOR COURT OF
  THE STATE OF ARIZONA, in and for the County of COCONINO,
                     Respondent Judge,

 COCONINO COUNTY ATTORNEY’S OFFICE; JASON CONLEE, Real
                   Parties in Interest.

                         No. 1 CA-SA 18-0130
                           FILED 8-30-2018


 Petition for Special Action from the Superior Court in Coconino County
                             No. CR2016-00434
                   The Honorable Dan R. Slayton, Judge

          JURISDICTION ACCEPTED, RELIEF GRANTED


                              COUNSEL

Arizona Voice for Crime Victims, Phoenix
By Colleen Clase, Eric Aiken
Counsel for Petitioner
Coconino County Attorney’s Office, Flagstaff
By Stacy Lynn Krueger, Michael S. Tunink
Counsel for Real Party in Interest Coconino County Attorney’s Office

The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Real Party in Interest Jason Conlee

DeFusco & Udelman, PLC, Scottsdale
By Randall S. Udelman
Counsel for Amicus Curiae National Crime Victim Law Institute



                                  OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Lawrence F. Winthrop joined.


C A T T A N I, Judge:

¶1             E.H. seeks special action review of the Coconino County
Superior Court’s ruling denying her request to be treated as a victim in
criminal proceedings involving Jason Conlee, who is accused of killing
E.H.’s six-year-old sibling, J.H. Under Arizona’s Victims’ Bill of Rights, if a
criminal offense is committed against someone who is killed or
incapacitated, victims’ rights are to be accorded to “the person’s spouse,
parent, child, grandparent or sibling, any other person related to the person
by consanguinity or affinity to the second degree or any other lawful
representative of the person.” Ariz. Rev. Stat. (“A.R.S.”) § 13-4401(19); see
also Ariz. Const. art. 2, § 2.1(C). The superior court declined to treat E.H. as
a victim, reasoning that § 13-4401(19) contemplates that only one person
may be designated as a representative of the deceased, and in this case, such
a representative (a victim advocate from Coconino County Victim Witness
Services) had already been appointed. We hold to the contrary that, when
the person against whom the crime was committed is deceased or
incapacitated, § 13-4401 grants victim status to each person who fits within
any of the defined categories of victims under the statute. Accordingly, and
for reasons that follow, we accept jurisdiction and grant relief.




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                E.H. v. HON. SLAYTON/CCAO/CONLEE
                          Opinion of the Court

                               DISCUSSION

¶2             Under Arizona’s Victims’ Bill of Rights, crime victims have a
right “[t]o be treated with fairness, respect, and dignity, and to be free from
intimidation, harassment, or abuse, throughout the criminal justice
process.” Ariz. Const. art. 2, § 2.1(A)(1). Other rights include the right “[t]o
be heard at any proceeding involving a post-arrest release decision, a
negotiated plea, and sentencing” and the right “[t]o confer with the
prosecution, after the crime against the victim has been charged, before trial
or before any disposition of the case and to be informed of the disposition.”
See id. § 2.1(A)(4), (6).

¶3            For these purposes, the Arizona Constitution defines “victim”
as “a person against whom the criminal offense has been committed or, if
the person is killed or incapacitated, the person’s spouse, parent, child or
other lawful representative, except if the person is in custody for an offense
or is the accused.” Id. § 2.1(C). The Legislature has broadened the class of
victims by statute to also include the deceased or incapacitated person’s
“grandparent or sibling, any other person related to the person by
consanguinity or affinity to the second degree or any other lawful
representative of the person.” A.R.S. § 13-4401(19).1

¶4            Focusing on the use of the word “or” in the constitutional and
statutory provisions, the superior court interpreted those provisions as
creating an exclusive disjunctive, meaning a choice of one among several
options. But “or” can also be an inclusive disjunctive, meaning one or the
other or both. And in the context of the Victims’ Bill of Rights and as
explained below, the most logical construction is that “or” is used
inclusively, and that victim status in cases in which there is a deceased or
incapacitated victim should be accorded to anyone who is either a spouse,
or a parent, or a child, or a grandparent, etc. of the deceased person.

¶5            Interpreting “or” as an inclusive disjunctive is necessary to
give meaning to the constitutional mandate that victims be treated with
respect, and it avoids a process that would require the superior court to
select the most “appropriate” victim from among the categories of
individuals listed in the statute. If, for example, the two surviving parents
of a deceased victim were to differ in their view of whether a plea should
be extended, or whether a certain sentence should be imposed, see Ariz.


1      The Victims’ Bill of Rights vests the Legislature with the power to
“enact substantive and procedural laws to define, implement, preserve and
protect the rights guaranteed to victims.” Ariz. Const. art. 2, § 2.1(D).


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                E.H. v. HON. SLAYTON/CCAO/CONLEE
                          Opinion of the Court

Const. art. 2, § 2.1(A)(4), (6), the superior court would have no principled
basis from which to choose just one parent to provide input to the
prosecutor and to the court. Neither the constitutional nor the statutory
provision prioritizes one family member (within the designated
relationships) over another, and it would be demeaning to all such relations
to pit them against each other in competition to be the person who best
represents the interests of the deceased.

¶6              Our interpretation of the statutory language is further
supported by the fact that the Legislature added to the categories of
potential victims under § 13-4401(19) without any suggestion that the
additions are only relevant if no one else fits within the previously defined
categories of victims. Moreover, the prior version of the statute included
several categories of victims—parents, spouses, and children—while
specifically excluding anyone in custody for an offense or who is the
accused. The Legislature added grandparents, siblings, and other relatives
to the list of designated victims without specifying or implying that anyone
other than a person in custody or who is the accused may not be entitled to
victim status. Thus, the statutory change is more logically read as creating
additional categories of victims, all of whom are entitled to the rights
guaranteed under the Victims’ Bill of Rights.

¶7             The Coconino County Attorney notes that the Victims’ Bill of
Rights contemplates that only one person—the person against whom the
crime was committed—can exercise victims’ rights if the crime victim is
living, even though other individuals (including the crime victim’s parents
and siblings) may have suffered serious harm as a result of the crime. See
Ariz. Const. art. 2, § 2.1(C); A.R.S. § 13-4401(19). The County Attorney thus
argues that, in the case of a deceased or incapacitated victim, the list of
relations—spouse, parent, child, grandparent, sibling, etc.—should be read
as creating a class of potential representatives of the deceased victim, i.e., a
class of persons from which one member is to be selected to take the place
of or speak for the victim.

¶8            Although there may be some benefit to having a single voice
represent the interests of the deceased victim, the language of the statute
contemplates the possible appointment of a “lawful representative”
(distinct from the deceased victim’s relations) to act in the victim’s best
interests with no suggestion that the appointment of such a representative
removes victim status from other designated victims. See A.R.S. §§ 13-
4401(19), -4403(B). Moreover, as noted above, it would be illogical to
compel a procedure that would require the superior court to arbitrarily



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                E.H. v. HON. SLAYTON/CCAO/CONLEE
                          Opinion of the Court

select the most “appropriate” survivor to represent the interests of the
deceased victim.

¶9             Finally, recognizing multiple victims under the statute (both
parents in the example noted above, or even a broader group of relations as
designated in the statute) is not unworkable. The State and the court can
hear and consider multiple—even conflicting—views from multiple family
members of a deceased victim without unduly burdening the criminal
justice system. And, contrary to Real Party in Interest Jason Conlee’s
assertion, a request to be accorded victim status is not an improper attempt
to “control the direction of the prosecution.” A victim’s rights under the
Arizona Constitution and the implementing legislation do not include the
right to “control” the prosecution, but rather the right to be treated fairly
and with respect, and an opportunity to express views that the prosecution
and the court must consider but that are not binding on the prosecutor or
the court. See State v. Lamberton, 183 Ariz. 47, 49 (1995); Lindsay R. v. Cohen,
236 Ariz. 565, 567, ¶ 8 (App. 2015); see also, e.g., A.R.S. §§ 13-4419(C), -4423,
-4426.

                                CONCLUSION

¶10           Based on the foregoing, we accept jurisdiction and grant
relief, holding that in cases in which there is a deceased or incapacitated
victim, anyone who fits within the enumerated categories of familial
relations specified in A.R.S. § 13-4401(19) is a victim and thus entitled to the
rights guaranteed under Arizona’s Victims’ Bill of Rights. Accordingly,
E.H. must be permitted to exercise such rights in any prospective
proceedings involving the crime committed against J.H.

¶11          We note that the superior court has already entered Jason
Conlee’s plea in this matter. The superior court must determine (absent an
agreement among the parties) whether E.H. was on notice of prior
proceedings and timely asserted her rights as a victim, entitling her to a
reexamination of prior proceedings, see A.R.S. § 13-4436, and/or whether
such reexamination would implicate principles of double jeopardy.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA

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