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Foor v. Smith

Court of Appeals of Arizona, First Division

March 6, 2018

JENNIFER FOOR, Petitioner/Appellant,
v.
HON. RICHARD SMITH, a Judge of the Phoenix Municipal Court, Respondent Judge, CITY OF PHOENIX, et al., Respondents/Real Parties in Interest.

         Appeal from the Superior Court in Maricopa County No. LC2012-000700-001 The Honorable David B. Gass, Judge AFFIRMED

          Charles R. Johnson, Counsel for Petitioner/Appellant

          Office of the Phoenix City Attorney, Ean P. White Counsel for Respondents/Real Parties in Interest

          Judge Jennifer M. Perkins delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones joined. Judge Jon W. Thompson specially concurred.

          OPINION

          Jennifer M. Perkins, Judge

         ¶1 Jennifer Foor appeals the superior court's order denying special action relief from an order of the Phoenix Municipal Court forfeiting Foor's cats to the City of Phoenix (the "City"). Foor argues undisclosed impeachment material pertaining to the Phoenix Police officer involved in her case amounts to a Brady violation by the City and requests the forfeiture of her cats be vacated. See Brady v. Maryland, 373 U.S. 83, 87 (1963). For the following reasons, we hold that Brady and Giglio require disclosure of material information under these circumstances, but affirm the superior court's denial of relief on other grounds. See Giglio v. United States, 405 U.S. 150, 153-54 (1972).

         FACTS AND PROCEDURAL HISTORY

         ¶2 Foor kept approximately forty-one cats in the backyard of her son's Phoenix home, where she resided. In October 2012, Traci Pepper, an emergency animal medical technician with the Arizona Humane Society ("AHS"), responded to Foor's residence to check the condition of the cats at the request of law enforcement. Pepper, after noting health concerns and poor sanitation, spoke to Foor about how to better care for and house the cats.

         ¶3 After a series of cancelled or missed appointments, Pepper returned to the home on December 4, 2012, and observed severely degraded living conditions, including overcrowding, poor sanitation, and signs of illness among the cats. Pepper contacted her supervisor at AHS, who, upon arriving at the house, contacted law enforcement. Pepper and her supervisor then began removing the cats while waiting for law enforcement officers to arrive. Officer Cohane of the Phoenix Police Department arrived, oversaw the seizure of the cats by AHS, and issued a notice of seizure to Foor. On arrival at the local shelter, Dr. Bradley, an AHS veterinarian, oversaw the immediate treatment and subsequent long-term care of the cats.

          ¶4 The municipal court promptly held a post-seizure hearing in accordance with Phoenix City Code ("Code") section 8-3.02(A). The court concluded the seizure was proper and Foor appealed by special action to the Maricopa County Superior Court. On review, the superior court determined it lacked sufficient information as to the extent of the municipal court's order and remanded the case for a forfeiture hearing in accordance with Code § 8-3.03.

         ¶5 The municipal court held a two-day evidentiary hearing in April and June of 2013 at which Pepper, Officer Cohane, Dr. Bradley, Foor, and Foor's son testified. After lengthy testimony, the court concluded the cats were cruelly neglected based upon the lack of shelter and sanitary conditions, and should be forfeited to the City. See Code § 8-3.03(B).

         ¶6 Foor then resumed her special action in the superior court, which denied her petition. On appeal, this Court affirmed the decision of the superior court. See Foor v. Smith, 1 CA-CV 14-0089, 2015 WL 1516528 (Ariz. App. Apr. 2, 2015) (mem. decision) ("Foor I "). Foor next petitioned the Arizona Supreme Court, which denied review.

         ¶7 Foor filed several additional requests for a stay of the forfeiture order and relief from judgment, all of which the superior court denied. Foor then filed an amendment to her original special action complaint alleging a Brady violation in the underlying civil forfeiture proceeding. The superior court granted review of the amended special action complaint and denied the ...


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