Petition for Special Action from the Superior Court in
Coconino County No. CR2016-00434 The Honorable Dan R.
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
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
Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Lawrence F.
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.
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).
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. §
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.
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. 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.
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 ...