author: BY THE COURT:

text:
    Michael Dewayne KECK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0185
    Supreme Court of Wyoming.
    March 6, 2019
    ORDER AFFIRMING ORDER OF DISMISSAL
    [¶1] This matter came before the Court upon its own motion following notification that Appellant has not filed a pro se brief within the time allotted by this Court. Appellant took this appeal to challenge the district court's May 14, 2018, "Order of Dismissal," which dismissed, without prejudice, charges of aggravated burglary, receiving stolen property, and disposing of stolen property. Wyo.Stat.Ann. § 6-3-301(c)(i) ; § 6-3-403(a)(i).
    [¶2] On January 2, 2019, Appellant's court-appointed appellate counsel filed a "Motion to Withdraw as Counsel," pursuant to Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The next day, this Court entered an "Order Granting Motion for Extension of Time to File Pro Se Brief." This Court ordered that, on or before February 19, 2019, Appellant "may file with this Court a pro se brief specifying the issues he would like the Court to consider in this appeal." This Court also provided notice that, after the time for filing a pro se brief expired, this Court would "make its ruling on counsel's motion to withdraw and, if appropriate, make a final decision on this appeal." Appellant did not file a pro se brief or other pleading in the time allotted.
    [¶3] Now, following a careful review of the record and the " Anders brief" submitted by appellate counsel, this Court finds that appellate counsel's motion to withdraw should be granted and the district court's "Order of Dismissal" should be affirmed. It is, therefore,
    [¶4] ORDERED that the Wyoming Public Defender's Office, court-appointed counsel for Appellant, Michael Dewayne Keck, is hereby permitted to withdraw as counsel of record for Appellant; and it is further
    [¶5] ORDERED that the district court's May 14, 2018, "Order of Dismissal" be, and the same hereby is, affirmed.
    [¶6] DATED this 6th day of March, 2019.
   BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice


source: Caselaw Access Project

author: JUSTICE PELANDER, opinion of the Court:

license: Public Domain

text:
    Alexis Marie DIAZ, Petitioner, v. Hon. Deborah BERNINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Tucson City Prosecutor's Office, Real Party in Interest.
    No. CR-18-0250-PR
    Supreme Court of Arizona.
    Filed February 28, 2019
    Mary C. Trejo, Chief Public Defender, Tucson Public Defender's Office, Kristina Bohn (argued), Deputy Public Defender, Tucson, Attorneys for Alexis Marie Diaz
    Michelle L. Behan (argued), Behan Ramsell, P.L.L.C., Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice
    Michael G. Rankin, Tucson City Attorney, Alan L. Merritt, Deputy City Attorney, Jennifer Stash, Mari L. Worman (argued), Prosecuting City Attorneys, Tucson, Attorneys for State of Arizona and Tucson City Prosecutors Office
    JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, GOULD, and LOPEZ joined.
   JUSTICE PELANDER, opinion of the Court:

¶1 Under Arizona's implied consent statute, a law enforcement officer may obtain a blood or breath sample from a person arrested for driving under the influence ("DUI") only if the arrestee expressly agrees to the test. We today hold that, apart from any constitutional considerations, the statute itself does not require that the arrestee's agreement be voluntary.

I.

¶2 On April 2, 2016, Alexis Diaz was arrested and later charged with DUI. After the arrest, the investigating officer read her the following "admin per se" admonition:

Arizona law states that a person who operates a motor vehicle at any time in this state gives consent to a test or tests of blood, breath, urine or other bodily substances for the purpose of determining alcohol concentration or drug content. The law enforcement officer is authorized to request more than one test and may choose the types of tests.
If the test results are not available, or indicate an alcohol concentration of 0.08 or above ... then your Arizona driving privilege will be suspended for not less than 90 consecutive days.
If you refuse, or do not expressly agree to submit to, or do not successfully complete the tests, your Arizona driving privilege will be suspended. The suspension will be requested for 12 months, or for two years if you've had a prior implied-consent refusal within the last 84 months.
Will you submit to the tests?

Diaz agreed and submitted to a breath test that revealed an alcohol concentration above the legal limit.

¶3 In municipal court, Diaz moved to suppress the breath test result, arguing her consent was not voluntary under either the Fourth Amendment or A.R.S. § 28-1321, Arizona's implied consent statute. The court deemed the admonition coercive, ruled that Diaz's consent to testing was involuntary, found the good-faith exception to the exclusionary rule inapplicable, and granted her motion to suppress. On appeal, the superior court affirmed the municipal court's involuntariness finding but found the good-faith exception applicable and therefore reversed the suppression order.

¶4 The court of appeals accepted jurisdiction of Diaz's ensuing special action petition but denied relief for reasons different from the superior court's. Diaz v. Bernini , 244 Ariz. 417, 418 ¶ 1, 419 ¶ 5, 419 P.3d 950, 951, 952 (App. 2018). Finding any federal or state constitutional challenge to the warrantless breath test foreclosed by prior case law, the court of appeals addressed whether Arizona's implied consent statute required suppression. Id. at 419-20 ¶¶ 6-9, 419 P.3d at 952-53 (citing Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 2184, 195 L.Ed.2d 560 (2016), and State v. Navarro , 241 Ariz. 19, 21 ¶ 4, 382 P.3d 1234, 1236 (App. 2016) ). The court held that a DUI arrestee's "agreement to testing under § 28-1321 must be voluntary" and "[i]f it is not, the officer has not secured a statutorily required pre-condition to conduct testing" and "has taken the sample unlawfully." Id. at 421 ¶ 14, 419 P.3d at 954. But concluding that the officer "accurately advise[d] Diaz of state law," and finding no facts suggesting that Diaz was coerced or misled to submit to testing, the court held that "her agreement was voluntary." Id. at 422 ¶¶ 18-19, 419 P.3d at 955. Accordingly, the breath test "results were obtained in compliance with the statute and were admissible at trial." Id. ¶ 20.

¶5 In her petition for review, Diaz challenges the court of appeals' determination that the State met its burden of proving voluntary consent and argues that, contrary to the superior court's ruling, the municipal court correctly found the good-faith exception inapplicable (an issue the court of appeals did not reach). In its cross-petition for review, the State argues the court of appeals erred in holding that § 28-1321 requires "voluntary" agreement to submit to breath tests and that if that requirement is not met, evidence of breath test results is inadmissible in a criminal DUI prosecution under A.R.S. § 28-1381. We granted review of the petition and cross-petition because the issues raised are of statewide importance and recurring. This Court has jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶6 Preliminarily, we agree with the court of appeals that this case does not implicate any constitutional issues. "[T]he administration of a breath test is a search" subject to Fourth Amendment constraints. Birchfield , 136 S.Ct. at 2173. A warrantless search is deemed reasonable under the Fourth Amendment, however, if "one of a few well-established exceptions [to the warrant requirement] applies." State v. Valenzuela (Valenzuela II ), 239 Ariz. 299, 302 ¶ 10, 371 P.3d 627, 630 (2016) (citing Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ). Under the search-incident-to-arrest exception, the United States and Arizona Constitutions permit law enforcement officers to administer warrantless breath tests to lawfully arrested DUI suspects. Birchfield , 136 S.Ct. at 2184 (holding that "the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving"); Navarro , 241 Ariz. at 21 ¶ 4, 382 P.3d at 1236 (concluding that for purposes of article 2, section 8 of the Arizona Constitution"a search incident to a lawful arrest does not require any warrant" and "non-invasive breath tests for DUI arrestees fall within this exception").

¶7 A warrantless search is also reasonable for Fourth Amendment purposes if the subject voluntarily consents. Birchfield , 136 S.Ct. at 2185. But Birchfield makes clear that because a warrantless breath test is "a permissible search incident to [a suspect's] arrest for drunk driving," the government need not establish under the totality of circumstances that the suspect voluntarily consented to the test. Id. at 2186.

¶8 Based on Birchfield and Navarro , the court of appeals correctly rejected Diaz's argument that her voluntary consent to the breath test was constitutionally required. Diaz , 244 Ariz. at 419-20 ¶¶ 6-8, 419 P.3d at 952. Therefore, like the court of appeals, we limit our analysis to § 28-1321.

III.

¶9 Commonly referred to as Arizona's implied consent law, § 28-1321 provides in part:

A. A person who operates a motor vehicle in this state gives consent ... to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or § 4-244, paragraph 34 while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state ... [w]hile under the influence of intoxicating liquor or drugs.
...
B. After an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed ... and if the violator refuses the violator shall be informed that the violator's license or permit to drive will be suspended ... unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal.

The statute further provides that "[i]f a person under arrest refuses to submit" to the designated test, it may not be given except pursuant to a search warrant or as provided by the medical-purpose exception in A.R.S. § 28-1388(E), and the violator's license must be surrendered. § 28-1321(D)(1), (2)(c). The purpose of § 28-1321 is to "remove from Arizona highways those drivers who may be a menace to themselves and others because of intoxication." Carrillo v. Houser , 224 Ariz. 463, 465 ¶ 13, 232 P.3d 1245, 1247 (2010) (quoting Sherrill v. Dep't of Transp. , 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990) ).

¶10 The parties dispute whether § 28-1321 provides greater protection than the Fourth Amendment by requiring DUI arrestees to voluntarily agree to breath testing. The issue is whether the statute requires that an arrestee "voluntarily consent" (as that phrase is understood for Fourth Amendment purposes) to a breath test even though the Fourth Amendment itself does not require such consent. Whether § 28-1321 imposes a voluntariness requirement, as Diaz contends and the court of appeals held, is a question of statutory construction which we review de novo. Stambaugh v. Killian , 242 Ariz. 508, 509 ¶ 7, 398 P.3d 574, 575 (2017). If, as here, the statute is subject to only one reasonable interpretation based on its words and context, we apply it without further analysis. Id.

¶11 Citing Carrillo , Diaz argues that § 28-1321"unquestionably imposes a consent requirement." And relying on State v. Butler , 232 Ariz. 84, 302 P.3d 609 (2013), she contends that requirement "is governed not just by the statute, but also by traditional Fourth Amendment analysis" requiring that the consent be voluntary. Neither those cases nor the statute itself supports this argument.

¶12 In Carrillo , based on the statute's requirement "that an arrestee 'expressly agree' to warrantless testing," 224 Ariz. at 466 ¶ 19, 232 P.3d at 1248 (quoting § 28-1321(B) ), this Court held that § 28-1321"generally does not authorize law enforcement officers to administer the test without a warrant unless the arrestee expressly agrees to the test," id. at 463 ¶ 1, 232 P.3d at 1245. "[T]o satisfy the statutory requirement," we said, "the arrestee must unequivocally manifest assent to the testing by words or conduct." Id. at 467 ¶ 19, 232 P.3d 1245. We resolved the case solely "as a matter of statutory interpretation" and did "not address any constitutional issues," clearly implying that the statute and constitution involve distinct inquiries and impose different requirements. Id. ¶ 21 ; see also Butler , 232 Ariz. at 88 ¶ 16, 302 P.3d 609 (noting that Carrillo turned solely "on statutory grounds and did not address any constitutional issues"). Neither § 28-1321 nor Carrillo mentions the term "voluntary," and they do not suggest that the statutory requirement of express agreement equates to or necessarily implies a voluntary consent requirement.

¶13 Nor does Butler support any such statutory requirement. There we held that "independent of § 28-1321, the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw." Butler , 232 Ariz. at 88 ¶ 18, 302 P.3d 609. This holding implies that "voluntary consent" for Fourth Amendment purposes is distinct from the statutory requirement of an arrestee's express agreement. Unlike this case, Butler and Carrillo involved blood tests. And unlike Carrillo , Butler dealt solely with constitutional issues in that context and did not suggest, let alone hold, that as a statutory matter lawful, warrantless testing under § 28-1321 requires an arrestee's voluntary consent. Likewise, Valenzuela II involved only a constitutional, not statutory, issue and held that under the Fourth Amendment, "a trial court should examine the totality of the circumstances to decide whether consent was voluntary, even when given after a law enforcement officer's assertion of lawful authority to search." 239 Ariz. at 301 ¶ 2, 305-06 ¶ 21, 371 P.3d at 629, 633-34. Although Valenzuela II involved both blood and breath tests, that case focused only on constitutional principles and, like Butler and Carrillo , preceded Birchfield .

¶14 In support of its holding that "the required agreement to testing under § 28-1321 must be voluntary," the court of appeals cited State v. Superior Court (Hays I ), 155 Ariz. 403, 747 P.2d 564 (App. 1986), aff'd , (Hays II ), 155 Ariz. 408, 747 P.2d 569 (1987). Diaz , 244 Ariz. at 421 ¶¶ 13-14, 419 P.3d at 954. Diaz neither cites nor relies on that case, which at any rate is inapposite. Hays I involved a prior version of the implied consent law which provided that "[t]he issue of refusal shall be an issue of fact and will be determined by the trier of fact in all cases." Hays I , 155 Ariz. at 406, 747 P.2d at 567 (quoting A.R.S. § 28-692(K) (1986)). The court of appeals stated that "implicit" in that statute was "a voluntary, i.e., intelligent or knowing, refusal"; held that "a preliminary hearing on refusal is permissible"; but determined that the trial court was "not permitted to delve into the voluntariness of the [DUI defendant's] refusal." Id. at 407-08, 747 P.2d at 568-69. On review, this Court merely agreed that the defendant "was not entitled to a voluntariness hearing," and stated that any evidence bearing on her refusal went to the weight, not admissibility, of the evidence in a criminal DUI prosecution. Hays II , 155 Ariz. at 412, 747 P.2d at 573.

¶15 The next year, the legislature changed the definition of "refusal" from a specific question of fact to a capacious term encompassing anything short of an express agreement. See Carrillo , 224 Ariz. at 466 ¶ 16, 232 P.3d at 1248 (tracing § 28-1321 's evolution). Hays I 's statement about what the former statute implied does not correlate to current law on refusal-an arrestee is legally deemed to refuse if she fails to expressly agree to or successfully complete the test(s). See § 28-1321(B). No voluntariness inquiry regarding an arrestee's refusal is needed or required under the current statute, and Hays I has no bearing on whether that statute requires a showing of voluntary consent to testing.

¶16 The court of appeals' resort to dictionary definitions of "agree" and "consent" to support its holding is also unpersuasive. Diaz , 244 Ariz. at 421 ¶ 13, 419 P.3d at 954 (finding "little semantic difference" between those terms and concluding that both "must logically be voluntary to fulfill their meaning"). Section 28-1321 permits arrestees to either "expressly agree" or "refuse" testing-it does not require that arrestees "consent" to testing. This distinction is meaningful because, as relevant here, the word "consent" is found only in subsection (A), under which a DUI arrestee "gives consent" to testing by operating a motor vehicle in this state. At most, then, the definition of "consent" is relevant only to determine if an arrestee's initial act implying consent-driving-requires voluntariness. Cf. State v. Wulff , 157 Idaho 416, 337 P.3d 575, 582 (2014) (reviewing a constitutional challenge to test results from a DUI blood draw and finding that the initial decision to drive must be made voluntarily). The court of appeals erred by converting the word "agree" in subsection (B) to "consent" and then implying for the latter a voluntariness requirement not found in the statute. See Comm. for Pres. of Established Neighborhoods v. Riffel , 213 Ariz. 247, 249-50 ¶ 8, 141 P.3d 422, 424-25 (App. 2006) ("[W]e assume that when the legislature uses different language within a statutory scheme, it does so with the intent of ascribing different meanings and consequences to that language."); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) ("A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.").

¶17 In short, dictionary definitions are neither helpful nor necessary here. Section 28-1321 's text does not contain the term "voluntary" and requires in subsection (B) only that the arrestee "expressly agree[ ]" to testing, a phrase that we have already defined as "unequivocally manifest[ing] assent to the testing by words or conduct." Carrillo , 224 Ariz. at 467 ¶ 19, 232 P.3d at 1249. We therefore hold that the statutory requirement of express agreement to testing does not equate to or necessarily imply a voluntary consent requirement.

¶18 Diaz argues that requiring voluntary consent for a warrantless blood test but not for a warrantless breath test creates an illogical and unworkable "two-tiered analysis" that is unsupported by the statute. But that dichotomy is based not on § 28-1321, which treats both tests alike, but rather on separate constitutional considerations and requirements. The Fourth Amendment, not the statute, requires voluntary consent or exigent circumstances for a warrantless blood test because it is "significantly more intrusive than blowing into a tube." Birchfield , 136 S.Ct. at 2178 ; see also Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ; Butler , 232 Ariz. at 87 ¶ 10, 302 P.3d 609. Breath tests, in contrast, involve "negligible" physical intrusion and "do not 'implicat[e] significant privacy concerns.' " Birchfield , 136 S.Ct. at 2176 (alteration in original) (quoting Skinner v. Ry. Labor Execs.' Ass'n , 489 U.S. 602, 626, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ); cf. Campbell v. Superior Court , 106 Ariz. 542, 547, 479 P.2d 685, 690 (1971) (noting the minimal inconvenience of breath testing).

¶19 Diaz acknowledges that she "does not assert a right to refuse, and she did not refuse" the officer's request to submit to a breath test. See Carrillo , 224 Ariz. at 465 ¶ 11, 232 P.3d at 1247 ("The implied consent noted in [ § 28-1321(A) ] statutorily disclaims any asserted 'right' by an arrestee to refuse testing."). And she concedes that if the statute contains no voluntariness requirement, as we conclude, she "expressly agree[d] to the test" by her words and conduct. Id. at 463 ¶ 1, 232 P.3d at 1245. For purposes of § 28-1321, the State was not required to also show that Diaz voluntarily consented to the test.

¶20 Accordingly, we do not address Diaz's argument that the court of appeals erroneously concluded that "her agreement was voluntary," Diaz , 244 Ariz. at 422 ¶ 19, 419 P.3d at 955, or Diaz's challenges to the admonition the officer recited in obtaining her consent to the breath test and to the superior court's application of the good-faith exception to the exclusionary rule, see State v. De Anda , No. CR-18-0286-PR, 246 Ariz. 104, 105, 434 P.3d 1183, 1184 ¶ 1, 2019 WL 962440 (Ariz. Feb. 28, 2019) (holding that officer's recitation of admin per se form identical to that used here "did not in itself render [DUI arrestee's] consent [to blood draw] involuntary"). Nor do we address the State's assertion that any violation of § 28-1321 would affect only administrative license-suspension proceedings and not a criminal DUI prosecution under § 28-1381.

¶21 Finally, we express no opinion on any hypothetical scenarios in which allegedly involuntary breath tests might raise statutory-compliance issues or implicate due process or other constitutional concerns. Cf. State v. Berg , 76 Ariz. 96, 97-98, 259 P.2d 261, 262-63 (1953) (finding, in an advisory opinion based on an "incomplete and unsatisfactory" record and issued before the Fourth Amendment was applied to the states through due-process incorporation and before enactment of Arizona's implied consent law, evidence of breath test results constitutionally admissible even though sample was "forcibly taken" from the defendant over his objection). In rejecting a "voluntary consent" requirement for purposes of § 28-1321, however, we do not suggest that arrestees can, consistent with the statute, be compelled to submit to a breath test or even that mere acquiescence (arguably the circumstances in Carrillo ) would satisfy the "expressly agrees" requirement in § 28-1321(B).

IV.

¶22 For the reasons set forth above, we affirm the superior court's ruling that reversed the municipal court's suppression order, vacate the court of appeals' opinion, and remand the case to the municipal court for further proceedings consistent with this opinion.


author: JONES, Judge:

text:
    Evelyn Lee SPOONER, Plaintiff/Appellant, v. CITY OF PHOENIX, et al., Defendants/Appellees.
    No. 1 CA-CV 17-0500
    Court of Appeals of Arizona, Division 1.
    FILED November 27, 2018
    Debus Kazan & Westerhausen, Ltd., Phoenix, By Tracey Westerhausen, Larry L. Debus, Gregory M. Zamora, Counsel for Plaintiff/Appellant
    Burch & Cracchiolo, Phoenix, By Melissa Iyer Julian, Counsel for Defendants/Appellees
    Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig joined.
   JONES, Judge:

¶ 1 Evelyn Spooner appeals from a judgment entered in favor of the City of Phoenix and Toni Brown (collectively, the City) on her civil claims arising from a purported wrongful arrest. Spooner argues the trial court erred by precluding her from using Brown's grand jury testimony to impeach Brown's credibility at trial and directing a verdict on her simple negligence claim. We affirm the preclusion of Brown's grand jury testimony and hold that a law enforcement officer is not subject to civil liability for simple negligence arising from an investigation into criminal activity. Accordingly, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2009, Brown, a detective with the Phoenix Police Department, began investigating Spooner's financial relationship with ninety-five-year-old Mary B. At a 2011 grand jury proceeding, Brown testified about her investigation, and the grand jury indicted Spooner for three counts of theft from a vulnerable adult and one count of unlawful use of a power of attorney. The State later dismissed the criminal charges, and Spooner then filed suit against the City asserting purported constitutional violations, simple negligence, gross negligence, intentional infliction of emotional distress, and malicious arrest. Spooner supported these claims with allegations that Brown lied to the grand jury, withheld exculpatory evidence, and failed to properly investigate Spooner's relationship with Mary.

¶ 3 After the close of evidence in an eight-day civil jury trial, the trial court entered judgment as a matter of law in the City's favor on Spooner's claims for simple negligence, malicious arrest, and constitutional violations. The jury then found for the City on the claims for gross negligence and intentional infliction of emotional distress. Spooner timely appealed the final judgment, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. The Trial Court Acted Within its Discretion in Excluding Brown's Grand Jury Testimony for Use as Impeachment Evidence.

¶ 4 At oral argument on appeal, Spooner conceded that grand jury witnesses enjoy absolute immunity for claims arising from their testimony. See Green Acres Tr. v. London , 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984) ; see also Rehberg v. Paulk , 566 U.S. 356, 369, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012). She argues, however, that the trial court deprived her of due process when it precluded her use of Brown's grand jury testimony for impeachment purposes at trial. The court precluded the testimony after finding both: (1) that "allowing introduction of the grand jury testimony ... would effectively operate to circumvent the absolute immunity of [a grand jury] witness," and (2) that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice and confusion of the issues-namely, "the appropriate scope of the use of the grand jury testimony relative to the remaining liability claims."

¶ 5 Spooner argues that evidence of Brown's purported false testimony to the grand jury is relevant to Brown's credibility, relying upon Marshall v. Randall , 719 F.3d 113, 116-18 (2d Cir.2013) (finding, under the Federal Rules of Evidence, no abuse of discretion in the admission of grand jury testimony to impeach law enforcement officers defending 42 U.S.C. § 1983 claims arising out of purportedly false testimony where there was "no potential for jury confusion"). We do not reach the general issue of admissibility, however, because we find no error in the exclusion of the evidence under Rule 403. Even relevant evidence is subject to exclusion "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, [or] misleading the jury." Ariz. R. Evid. 403. "Because 'probative value' and 'the danger of unfair prejudice' are not easily quantifiable factors, we accord substantial discretion to the trial court in the Rule 403 weighing process." Hudgins v. Sw. Airlines, Co. , 221 Ariz. 472, 481, ¶ 13, 212 P.3d 810, 819 (App. 2009) (citing State v. Gibson , 202 Ariz. 321, 324, ¶ 17, 44 P.3d 1001, 1004 (2002) ). The decision to preclude impeachment evidence is likewise reviewed for an abuse of discretion. See Gasiorowski v. Hose , 182 Ariz. 376, 382, 897 P.2d 678, 684 (App. 1994) (citing Selby v. Savard , 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982) ).

¶ 6 The record reflects that the trial court carefully considered the scope and purpose of absolute immunity in judicial proceedings, including warnings from both the U.S. Supreme Court and this Court against allowing parties to "circumvent" absolute witness immunity "by using evidence of the witness'[s] testimony to support any ... claim concerning the initiation or maintenance of a prosecution." Rehberg , 566 U.S. at 369, 132 S.Ct. 1497 ; accord Sobol v. Alarcon , 212 Ariz. 315, 318, ¶ 11, 131 P.3d 487, 490 (App. 2006) ("[I]t is necessary that the propriety of [a witness's] conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position.") (quotation omitted). The court also reasonably determined introduction of grand jury testimony was unfairly prejudicial and likely to confuse the jury because it would constitute direct evidence of purported misconduct for which the City was absolutely immune. We find no abuse of discretion or due process violation here.

II. The Trial Court Properly Entered Judgment as a Matter of Law for the City on the Simple Negligence Claim.

¶ 7 Spooner argues the trial court erred when it entered judgment for the City upon Spooner's claim for simple negligence. We review the entry of judgment as a matter of law de novo , "viewing the evidence and reasonable inferences in the light most favorable to the nonmoving party." SWC Baseline & Crismon Inv'rs, L.L.C. v. Augusta Ranch Ltd. P'ship , 228 Ariz. 271, 292, ¶ 93, 265 P.3d 1070, 1091 (App. 2011) (citing Shoen v. Shoen , 191 Ariz. 64, 65, 952 P.2d 302, 303 (App. 1997) ). We likewise review the existence and scope of qualified immunity de novo . See Ochser v. Funk , 228 Ariz. 365, 369, ¶ 11, 266 P.3d 1061. 1065 (2011) (citation omitted). We will affirm the judgment if it is correct for any reason. Walter v. Simmons , 169 Ariz. 229, 240 n.9, 818 P.2d 214, 225 n.9 (App. 1991).

¶ 8 As a general rule, public entities and public employees are subject to tort liability for their negligence. See Ryan v. State , 134 Ariz. 308, 309-10, 656 P.2d 597, 598-99 (1982) ("[T]he parameters of duty owed by the state will ordinarily be coextensive with those owed by others.") (citing Stone v. Ariz. Highway Comm'n , 93 Ariz. 384, 392, 381 P.2d 107 (1963) ), superseded by statute on other grounds as stated in Tucson Unified Sch. Dist. v. Owens-Corning Fiberglas Corp. , 174 Ariz. 336, 339, 849 P.2d 790, 793 (1993) ; see also Hogue v. City of Phoenix , 240 Ariz. 277, 280, ¶ 9, 378 P.3d 720, 723 (App. 2016) (citing Greenwood v. State , 217 Ariz. 438, 442, ¶ 14, 175 P.3d 687, 691 (App. 2008) ). Although our supreme court recognized the abolition of general sovereign immunity in Ryan , it nonetheless "hasten[ed] to point out that certain areas of immunity must remain." 134 Ariz. at 309-10, 656 P.2d at 599. Some remaining areas of immunity are prescribed by statute within Arizona's Governmental Tort Claims Act, see, e.g., A.R.S. § 12-820.02, but the legislature has directed that its statutory grant of immunity for certain acts "shall not be construed to affect, alter or otherwise modify any other rules of tort immunity regarding public entities and public officers as developed at common law." See A.R.S. § 12-820.05(A) ; see also Clouse ex rel. Clouse v. State , 199 Ariz. 196, 203, ¶ 27, 16 P.3d 757, 764 (2001) (acknowledging that common law immunity principles apply in the absence of statutory direction) (citations omitted).

¶ 9 Common law qualified immunity generally provides public officials, including police officers, limited protection from liability when "performing an act that inherently requires judgment or discretion." Chamberlain v. Mathis , 151 Ariz. 551, 555, 558, 729 P.2d 905, 909, 912 (1986) (applying the Ryan principles in concluding a state employee is protected by qualified immunity for discretionary acts); see also Portonova v. Wilkinson , 128 Ariz. 501, 503, 627 P.2d 232, 234 (1981) ("It has been recognized that in Arizona a police officer acting within the scope of his authority has at least a conditional immunity from civil liability.") (citing Patterson v. City of Phoenix , 103 Ariz. 64, 70-71, 436 P.2d 613, 619-20(1968) ); Restatement (Second) of Torts § 895D (1979) ("A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if ... he is [otherwise] immune because [he is] engaged in the exercise of a discretionary function."); id. at cmt. h (explaining no immunity attaches to a ministerial act "carr[ied] out [on] the orders of others or ... [done] with little choice as to when, where, how or under what circumstances"). This accommodation for discretionary acts exists because "officials should not err always on the side of caution" for fear of being sued. State v. Superior Court (Donaldson) , 185 Ariz. 47, 50, 912 P.2d 51, 54 (App. 1996) (quoting Hunter v. Bryant , 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) ); see also Restatement (Second) of Torts § 895D cmt. b ("The basis of the immunity has been not so much a desire to protect an erring officer as it has been a recognition of the need of preserving independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits."). The doctrine thus " 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.' " Donaldson , 185 Ariz. at 50, 912 P.2d at 54 (quoting Hunter , 502 U.S. at 229, 112 S.Ct. 534 ).

¶ 10 If qualified immunity applies, a public official performing a discretionary act "within the scope of [her] public duties" may be liable only if she "knew or should have known that [s]he was acting in violation of established law or acted in reckless disregard of whether h[er] activities would deprive another person of their rights." Chamberlain , 151 Ariz. at 558, 729 P.2d at 912 ; see also Grimm v. Ariz. Bd. of Pardons & Paroles , 115 Ariz. 260, 267-68, 564 P.2d 1227, 1235 (1977) (holding that members of the Arizona Board of Pardons and Paroles were liable "only for the grossly negligent or reckless release of a highly dangerous prisoner" but enjoyed "freedom from suit for reasonable decisions"). A public official's conscious disregard of the law or the rights of others constitutes gross negligence, see Noriega v. Town of Miami , 243 Ariz. 320, 328, ¶¶ 35-36, 407 P.3d 92, 100 (App. 2017) (citations omitted), and she remains liable for such conduct, Chamberlain , 151 Ariz. at 558, 729 P.2d at 912. But a public official performing a discretionary act encompassed within her public duties is shielded from liability for simple negligence. See Chamberlain , 151 Ariz. at 558, 729 P.2d at 912.

¶ 11 Criminal investigations involve the exercise of personal deliberation and individual professional judgment that necessarily reflect the facts of a given situation. By its very nature, investigative police work is discretionary and appropriate for exemption from suit for simple negligence. See Walls v. Ariz. Dep't of Pub. Safety , 170 Ariz. 591, 594, 826 P.2d 1217, 1220 (App. 1991) (acknowledging that decisions to investigate a crime or arrest a suspect "involve a judgment by a police officer"). Moreover:

The public has a vital stake in the active investigation and prosecution of crime. Police officers and other investigative agents must make quick and important decisions as to the course an investigation shall take. Their judgment will not always be right; but to assure continued vigorous police work, those charged with that duty should not be liable for mere negligence.

Landeros , 171 Ariz. at 475, 831 P.2d at 851 (quoting Smith v. State , 324 N.W.2d 299, 301 (Iowa 1982) ); see also Everitt v. Gen. Elec. Co. , 156 N.H. 202, 932 A.2d 831, 844 (2007) ("[L]aw enforcement by its nature is susceptible to provoking the hostilities and hindsight second-guessing by those directly interacting with police as well as by the citizenry at large.... The public simply cannot afford for those individuals charged with securing and preserving community safety to have their judgment shaded out of fear of subsequent lawsuits."). Accordingly, we conclude that public policy mandates that investigative police work, performed in the scope of an officer's public duty, is a discretionary act subject to qualified immunity.

¶ 12 Here, Spooner alleged Brown acted either intentionally or negligently to effectuate Spooner's arrest without the requisite probable cause. To the extent these actions violate clearly established law or reflect a reckless disregard of Spooner's rights, they are afforded no protection. The trial court properly permitted Spooner to proceed on these claims and properly instructed the jury that it could find in Spooner's favor if she proved gross negligence. But to the extent Brown's actions reflect the legitimate exercise of professional judgment, they are discretionary and protected by qualified immunity. Thus, the court rightfully entered judgment as a matter of law in the City's favor on the claim for simple negligence.

CONCLUSION

¶ 13 The judgment in favor of the City is affirmed. As the prevailing party, the City is entitled to its costs incurred on appeal upon compliance with ARCAP 21(b).

      Spooner also alleged the City did not properly supervise and train its employees to prevent wrongful arrests, but she did not advance this theory at trial.

      Absent material changes from the relevant date, we cite a statute's current version.

      Although Spooner suggests the grand jury testimony could have been admitted with a limiting instruction regarding its proper purpose, rather than excluded altogether, she did not request this remedy at trial and therefore waived her right to assert error on this basis. Cf. State v. Mott , 187 Ariz. 536, 546, 931 P.2d 1046, 1056 (1997).

      Spooner cites Austin v. City of Scottsdale , 140 Ariz. 579, 684 P.2d 151 (1984) ; Hutcherson v. City of Phoenix , 188 Ariz. 183, 933 P.2d 1251 (App. 1996), reversed on other grounds , 192 Ariz. 51, 961 P.2d 449 (1998) ; and Landeros v. City of Tucson , 171 Ariz. 474, 831 P.2d 850 (App. 1992), to support her argument that the City may be liable for simple negligence. None of these cases squarely discuss whether a law enforcement officer enjoys qualified immunity for discretionary decisions made in the course of a criminal investigation, and we do not find them instructive.


text:
    Concerning the APPLICATION FOR WATER RIGHTS OF WELL AUGMENTATION SUBDISTRICT OF the CENTRAL COLORADO WATER CONSERVANCY DISTRICT and South Platte Well Users Association,
    Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association, Applicants-Appellees v. Centennial Water and Sanitation District, Opposer-Appellant and Bijou Irrigation Company; Bijou Irrigation District ; Cache La Poudre Water Users Association; City of Aurora; City of Black Hawk ; City of Boulder; City and County of Denver Acting by and Through its Board of Water Commissioners; City of Englewood; City of Greeley Acting by and Through its Water and Sewer Board; City of Sterling; City of Thornton; City of Westminster; Ducommun Business Trust; East Cherry Creek Valley Water and Sanitation District; Farmers Reservoir and Irrigation Company ; Fort Morgan Reservoir and Irrigation Company; Harmony Ditch Company ; Henrylyn Irrigation District; Irrigationists' Association, Water District 1; Jackson Lake Reservoir and Irrigation Company; Lower Latham Reservoir Company ; Lupton Bottom Ditch Company; Lupton Meadows Ditch Company; New Cache La Poudre Irrigating Company ; Cache La Poudre Reservoir Company; North Poudre Irrigation Company; Pawnee Well Users, Inc.; Public Service Company of Colorado; Riverside Irrigation District; Riverside Reservoir and Land Company ; South Adams County Water and Sanitation District; State Engineer and Division Engineer; United Water and Sanitation District; and Westfarm, LLC, Opposers-Appellees and Concerning David Nettles, Division Engineer, Water Division 1, Appellee Pursuant to C.A.R. 1(e).
    Supreme Court Case No. 16SA256
    Supreme Court of Colorado.
    February 19, 2019
    Attorneys for Opposer-Appellant: Buchanan Sperling & Holleman PC, Veronica A. Sperling, Paul F. Holleman, Boulder, Colorado
    Attorney for Applicants-Appellees: Lawrence Jones Custer Grasmick LLP, David P. Jones, Johnstown, Colorado
    Attorneys for Opposer-Appellee State Engineer and Division Engineer and Appellee Pursuant to C.A.R. 1(e) David Nettles, Division Engineer, Water Division 1: Philip J. Weiser, Attorney General, Paul L. Benington, First Assistant Attorney General, Denver, Colorado
    Attorneys for Amicus Curiae City of Colorado Springs: City of Colorado Springs Attorney's Office, Michael Gustafson, Colorado Springs, Colorado
    Hill & Robbins, P.C., David W. Robbins, Matthew A. Montgomery, Denver, Colorado
    No appearance by or on behalf of Bijou Irrigation Company; Bijou Irrigation District; Cache La Poudre Water Users Association; City of Aurora; City of Black Hawk; City of Boulder; City and County of Denver acting by and through its Board of Water Commissioners; City of Englewood; City of Greeley acting by and through its Water and Sewer Board; City of Sterling; City of Thornton; City of Westminster; Ducommun Business Trust; East Cherry Creek Valley Water and Sanitation District; Farmers Reservoir and Irrigation Company; Fort Morgan Reservoir and Irrigation Company; Harmony Ditch Company; Henrylyn Irrigation District; Irrigationists' Association, Water District 1; Jackson Lake Reservoir and Irrigation Company; Lower Latham Reservoir Company; Lupton Bottom Ditch Company; Lupton Meadows Ditch Company; New Cache La Poudre Irrigating Company; Cache La Poudre Reservoir Company; North Poudre Irrigation Company; Pawnee Well Users, Inc.; Public Service Company of Colorado; Riverside Irrigation District; Riverside Reservoir and Land Company; South Adams County Water and Sanitation District; United Water and Sanitation District; or Westfarm, LLC.
    En Banc
   CHIEF JUSTICE COATS delivered the Opinion of the Court.

¶1 Centennial appealed from an order of the water court dismissing its objection to the Well Augmentation Subdistrict's proposal to use additional sources of replacement water for its previously decreed augmentation plan. Centennial had asserted that WAS failed to comply with the notice requirements of the decree itself and that this failure amounted to a per se injury, for which it was entitled to relief without any further showing of operational effect. The water court heard Centennial's motion objecting to WAS's proposed addition of new sources of replacement water and, without requiring WAS to present evidence, found that Centennial failed to establish prima facie facts of WAS's inability to deliver augmentation water in quantity or time to prevent injury to other water users. Referencing C.R.C.P. 41 as the appropriate procedural vehicle, the water court dismissed Centennial's objection.

¶2 Because exercise of the water court's retained jurisdiction was statutorily limited to preventing or curing injury to other water users, and because the evidence presented by Centennial failed to establish that WAS would be unable, under the conditions imposed by the Engineer for approval of the additional sources of replacement water, to deliver augmentation water sufficient to prevent injury to other water users, the water court's dismissal of Centennial's objection is affirmed.

I.

¶3 In 2003, the Well Augmentation Subdistrict of the Central Water Conservancy District and South Platte Well Users Association applied for approval of a plan for augmentation to replace out-of-priority well depletions to the South Platte River, and Centennial Water and Sanitation District, the appellant before this court, was one of the opposers to that application. In 2008, the water court for Division 1 entered a decree approving WAS's augmentation plan, subject to the conditions specified in the decree. In 2015, WAS proposed to add certain sources of replacement water, as expressly permitted by the initial decree, by giving written Notice of Use of Water Rights for Augmentation to the water court, the Division Engineer, and all the objectors.

¶4 Centennial filed an objection to the addition of one particular category of replacement water in WAS's proposal, designated "Category 2" water, but that objection was dismissed on the ground that the decree permitted a challenge in the water court to a proposed additional or alternative source of replacement water only after that additional source had been approved by the Division Engineer, and only then by invoking the statutorily retained jurisdiction of the water court. After entertaining the objections of Centennial, the Engineer approved the use of WAS's proposed Category 2 water, subject to six specified conditions. Centennial again filed an objection, this time invoking the retained jurisdiction of the water court in reliance on the provisions of paragraph 45.2 of the decree and asserting that WAS's Notice of Use failed to fully comply with the requirements of paragraph 13.1 of the decree by failing to specify the available amount, location of delivery, and method of accounting for the use of its Category 2 water.

¶5 Over the objection of the Engineer, the court permitted Centennial to proceed under the court's retained jurisdiction, despite there not yet having been any operational experience with the additional sources, as approved by the Engineer; and after also granting Centennial's request for an evidentiary hearing on its motion objecting to the additional sources of replacement water, the court ordered discovery and expert disclosures, and ultimately heard the motion. At the hearing, Centennial presented testimony, based on the report of its expert, to the effect that the notice provided by WAS failed to comply with paragraph 13.1, and therefore should be denied, and that if the Category 2 replacement water were permitted without requiring a separate notice complying with paragraph 13.1, additional terms and conditions would be required, to include a requirement that all available paragraph 13.1 information be provided to Centennial at least thirty days in advance of projection and use of any new Category 2 recharge accretions. At the close of Centennial's evidence, the water court made findings and concluded that Centennial had failed to factually establish that any injury would occur if the Category 2 sources of water were added to the augmentation plan under the conditions approved for administration by the Engineer, and it dismissed Centennial's objection.

¶6 In its ruling, the water court articulated more specifically its understanding of the controlling statutes, rules of procedure, and provisions of the decree, and how those authorities dictated its conclusion. With regard to its dismissal at that stage of the proceedings, the court found that C.R.C.P. 41 applied to this type of retained jurisdiction proceeding, and that in a proceeding to add a source of replacement water which the applicant had a legal right to use, Centennial, as the objector to the proposal, bore an initial burden of establishing prima facie facts proving that injury would occur under the conditions imposed by the Engineer. In light of Centennial's failure to even attempt to prove facts indicating that WAS would be unable to deliver augmentation water in quantity and time to prevent injury to other water users under those conditions, the water court found that, as a matter of law, Centennial failed to establish a prima facie case of its entitlement to relief and, therefore, that dismissal was proper without requiring any further showing by WAS.

¶7 With regard to Centennial's continuing assertion that injury was sufficiently established by proving WAS's failure to comply with the notification procedures of the decree alone, the water court first found that for recharge credits that would only accrue from future diversions like the Category 2 water at issue here, estimates based on past deliveries would be sufficient to comply with the notice requirements of the decree. In any event, however, the water court interpreted the procedures of the decree, as left to the discretion of the water court by section 37-92-305(8) of the revised statutes, to allow for the addition of new sources of replacement water, without applying to the water court for a change in the plan, as long as WAS gave the required notification to the court, the Engineer, and objectors; objectors were afforded time to comment to the Engineer; the Engineer determined the conditions under which the additional proposed source could be used without causing injury to other water users and approved use of the additional source subject to those conditions; and any objectors were then permitted a challenge to the operational effect of the Engineer's decision by invoking the statutorily retained jurisdiction of the water court. On the grounds that the court retained jurisdiction only for the purpose of preventing or curing injury to other water rights resulting from implementation of a plan for augmentation, the water court found that even a violation of the notification requirements of the decree, had one occurred, would be insufficient to entitle Centennial to relief.

¶8 Centennial appealed to this court from the water court's ruling.

II.

¶9 A plan for augmentation is to be approved if it will not injuriously affect the owner of or persons entitled to the use of water under a vested water right or a decreed conditional water right. § 37-92-305(3)(a), C.R.S. (2018). More particularly, a plan for augmentation must be considered sufficient to permit the continuation of diversions when curtailment would otherwise be required to meet a senior call for water, to the extent that the applicant provides replacement water necessary to meet the lawful requirements of a senior diverter at the time and location and to the extent the senior would be deprived of his or her lawful entitlement by the applicant's diversion. § 37-92-305(8)(c). With regard to the decree approving such a plan, section 37-92-305(8), as amended in 2003, authorizes a plan for augmentation to provide procedures to allow additional or alternative sources of replacement water to be used in the plan after the initial decree is entered if, among other reasons, those sources have been decreed for such use. Ch. 204, sec. 5, § 37-92-305, 2003 Colo. Sess. Laws 1446, 1454. The amendment does not dictate more specifically any particular requirements for using additional or alternative sources of replacement water without formally amending its augmentation plan. See id.

¶10 As contemplated by statute, a decree for a plan for augmentation is effectively a prediction of how the plan can operate without causing injury to existing water rights. See § 37-92-305(3)(a) ; Farmer's Reservoir & Irrigation Co. v. Consol. Mut. Water Co. , 33 P.3d 799, 811 (Colo. 2001). Section 37-92-304(6), C.R.S. (2018), expressly requires that any decision of the water judge dealing with a plan for augmentation include the condition that approval of the plan be subject to reconsideration on the question of injury to the vested rights of others, for whatever period after entry as is necessary or desirable to preclude or remedy any such injury. We have previously characterized this retained jurisdiction as functioning as a test period for the operation of the augmentation plan, during which the water court may test the prediction and finding of non-injury it made in its judgment and decree. See Farmer's Reservoir & Irrigation Co. , 33 P.3d at 811.

¶11 In pertinent part, the 2008 decree at issue in this case provides for the use of additional sources of various kinds, with the approval of the Division Engineer. In re Application for Water Rights of Well Augmentation Subdist. of the Cent. Colo. Water Conservancy Dist. & S. Platte Well Users Ass'n , No. 03CW99 (Dist. Ct. Water Div. 1 May 14, 2008) (Findings of Fact, Conclusions of Law, and Decree of the Water Court). As applicable to WAS's notification, section 13.1 permits the use of a water right not already approved for use under the decree, if that water right has been decreed for or is lawfully available for augmentation use; if WAS gives notice of its proposed use to the court, the Division Engineer, and all of the objectors; and if the Division Engineer approves that use. Notice of Use of Water Right for Augmentation must be given in writing, at least thirty days in advance, and must describe: (1) the water right, (2) the amount of water available to WAS from the water right, (3) the location the water will be delivered to the stream, (4) evidence that the water will not be used by anyone else, and (5) how WAS will account for the use of the water.

¶12 In addition, section 45 of the decree indicates that the decreed Plan for Augmentation shall remain subject to perpetual general retained jurisdiction, pursuant to section 37-92-304(6), permitting any person, including the State and Division Engineers, to invoke retained jurisdiction by filing a motion with the court. It further requires that any motion to invoke retained jurisdiction set forth with particularity the factual basis and the alleged injury upon which the requested reconsideration is premised, together with proposed decree language modifications offered by the moving party to remedy the alleged injury. In language not dissimilar to holdings of this court dictating the relative burdens in a proceeding invoking the retained jurisdiction of a water court, see Upper Eagle Reg'l Water Auth. v. Wolfe , 230 P.3d 1203, 1216-17 (Colo. 2010), the section also specifies that the moving party shall have the initial burden of going forward to establish the prima facie facts and the existence of the injury alleged in the motion, but that WAS shall have the ultimate burden of proof to show either that the alleged injury has not occurred or will not occur, or to propose additional terms and conditions which will prevent the injury from occurring.

III.

¶13 Despite the absence of any factual dispute concerning the actual content of WAS's notification, the water court found that Centennial failed to meet its burden for two different reasons. First, interpreting the decree as a whole to require no more than estimates with respect to sources as to which credits would continue to accrue pursuant to a lease agreement, the court found that the notice given by WAS actually was sufficient to satisfy the decree. In this regard, it observed that elsewhere in the decree, other water users were adequately protected by limiting WAS's projections to credits that had already accrued. Second, interpreting the decree to permit additional sources of water upon approval of the Engineer, subject to challenge by invoking the court's retained jurisdiction to prevent or cure injury to other water users, just as would be the case with respect to the operational effect of the plan had no new source of replacement water been added, the court found that Centennial's objection failed, as a matter of law, because Centennial offered no evidence that injury to other water users had or would result from operation of the plan. We find it unnecessary to review the water court's interpretation of the decree concerning the required specificity because, at the very least, the court properly held Centennial to proof that more specific notice than that provided was necessary to prevent injury to other water users.

¶14 Centennial's assertions that strict compliance with the notice provisions of section 13.1 is required, that a failure to strictly comply constituted a per se injury, and that the water court erred in finding that Centennial did not meet its burden of proof, all appear to stem from a fundamental misconception about the meaning of the General Assembly's 2003 amendment to section 37-92-305(8). Centennial expressly asserts that a party seeking to add a new source of replacement water to an existing augmentation plan, as now permitted by statute, necessarily bears the same burden to prove that its plan will not injure other water users as was imposed on it for approval of its augmentation plan in the first instance. It reasons, therefore, that a failure to strictly comply with the notice requirements of section 13.1 demonstrates a sufficient likelihood of injury to other users, in and of itself, and that by demonstrating a failure by WAS to comply, Centennial met its burden, which WAS should have been forced to rebut.

¶15 The 2003 amendment, however, authorizes decrees for plans for augmentation to include procedures to add replacement sources after a final decree entered, without requiring an applicant to seek a change of right or new augmentation plan. Ch. 204, sec. 5, § 37-92-305, 2003 Colo. Sess. Laws 1446, 1454. Nothing in section 37-92-305(8)(c) purports to require specific notification or other procedures for such an addition of replacement sources to the existing decree, and nothing in the statute suggests an expansion of the jurisdiction of the water court to entertain challenges to compliance with the terms of the decree once it has entered. Not only is the imposition of any such requirement not implied in the language of the statute itself, but to impute such a requirement would be little short of mandating a court-approved change to the water right, effectively nullifying the 2003 amendment.

¶16 Rather, in addition to the seemingly unambiguous language of the amendment permitting the original decree to provide for the addition of new sources of replacement water not originally included, the historical context in which the amendment originated provides a strong motivation for the legislature to have intended precisely what it said. The General Assembly enacted SB 03-073 on the heels of two decisions from this court determining that, with limited statutory exceptions, it is the province of the water courts, not the Engineer, to approve and decree augmentation plans allowing for out-of-priority diversions. See Simpson v. Bijou Irrigation Co. , 69 P.3d 50, 63 (Colo. 2003) ; Empire LodgeHomeowner's Ass'n v. Moyer , 39 P.3d 1139, 1153 (Colo. 2001). Those decisions vitiated efforts by the Engineer to authorize out-of-priority pumping in the South Platte Basin and elsewhere through replacement plans and substitute supply plans in lieu of a decreed augmentation plan from the water court. See Simpson , 69 P.3d at 56 ; Empire Lodge Homeowner's Ass'n , 39 P.3d at 1144-45. Senate Bill 03-073 affirmed those holdings and specifically required groundwater users in the South Platte Basin to file for an augmentation plan in water court by 2006 or face curtailment. See Ch. 204, sec. 5, § 37-92-308, 2003 Colo. Sess. Laws 1446, 1446-47.

¶17 At the same time, SB 03-073, in its amendment to section 37-92-305(8), restored some authority to the Engineer by allowing decree holders, if so permitted in the decree, to add new replacement water sources without returning to water court. See Ch. 204, sec. 5, § 37-92-305, 2003 Colo. Sess. Laws 1446, 1454. Instead, the procedures imparted into the decree would condition when and how new sources could be added to the plan. See id. In this way, SB 03-073 contemplated that for this process, the Engineer, not the water court, would function as the primary safeguard for ensuring that the decree holder has followed those procedures and could add those sources to its plan without injury, sparing the decree holder from the kind of cumbersome water court process SB 03-073 specifically sought to avoid.

¶18 Understood as a process to allow for the use of new sources of replacement water, in accordance with conditions determined by the Engineer to be sufficient to prevent injury to other users, section 13.1 does not purport to duplicate the burden of proof required for a new augmentation plan, nor does section 37-92-305(8)(c) contemplate as much. In the absence of expanded jurisdiction for review, the information to be provided the Division Engineer, and objectors with an interest in avoiding injury, is clearly mandated to facilitate the inclusion of conditions designed to minimize the risk of injury in actual operation. Once approved by the Engineer, the operational effect of including additional sources of replacement water remains subject to review, pursuant to the water court's retained jurisdiction, to the extent it has or will cause injury, just as any other aspect of the augmentation plan. See Upper Eagle Reg'l Water Auth. , 230 P.3d at 1215-16 ; Farmer's Reservoir & Irrigation Co. , 33 P.3d at 810-11 (citing § 37-92-304(6) ).

¶19 Finally, Centennial objects to reliance on C.R.C.P. 41 as the appropriate analog for proceedings under the water court's retained jurisdiction. Consistent with its view that an applicant for an augmentation plan retains an obligation to prove that other water users will not be injured by its addition of a new source of replacement water, Centennial characterizes the applicant as occupying the position of a plaintiff in a civil proceeding, the party against whom rather than in favor of whom Rule 41 provides for a judgment to be rendered. See C.R.C.P. 41(b)(1). For the reasons we have explained, this is simply a misreading of section 37-92-305(8)(c).

¶20 Relying in addition on the decree's insertion of the term "prima facie," Centennial also misreads section 45.2 to deviate from our prior apportionment of the relative burdens of proof in a proceeding under the court's retained jurisdiction. See Upper Eagle Reg'l Water Auth. , 230 P.3d at 1216 ("[T]he persons seeking to invoke reconsideration of the injury question under the decree's retained jurisdiction provision have the initial burden of establishing that injury has occurred ...." (quoting Farmer's Reservoir & Irrigation Co. , 33 P.3d at 812 )) (emphasis omitted). The decree assigned Centennial, as the objector invoking the court's retained jurisdiction, the initial burden of "establish[ing] the prima facie facts and the existence of the injury alleged in [its] motion" before WAS would have "the ultimate burden of proof to show either that the alleged injury ha[d] not occurred or [would] not occur, or to propose additional terms and conditions which [would] prevent the injury from occurring." Although Centennial concedes that this burden requires it to "establish" facts and the "existence" of injury sufficient to sustain a judgment in its favor unless contradictory evidence is produced by WAS, as a result of the decree's reference to "prima facie facts," it appears to understand its burden as merely requiring the production of evidence from which a reasonable trier of fact could find in its favor in the absence of contradictory evidence.

¶21 As Centennial argues, we have commonly used the term "prima facie" in distinguishing the plaintiff's burden in overcoming a motion for directed verdict in a jury trial from its burden to survive a motion to dismiss in a trial to the court pursuant to C.R.C.P. 41(b), see, e.g., Teodonno v. Bachman , 158 Colo. 1, 404 P.2d 284, 285 (Colo. 1965) ; and we have similarly applied that distinction in cases governed by the water rules, where the water court is the trier of fact. See City of Aurora ex rel. Util. Enter. v. Colo. State Eng'r , 105 P.3d 595, 615 (Colo. 2005) ; Public Serv. Co. of Colo. v. Bd. of Water Works , 831 P.2d 470, 480 (Colo. 1992). In that context, we have juxtaposed making a prima facie case, meaning producing evidence from which a reasonable jury could find in the plaintiff's favor, from proving to the satisfaction of the trial court that the plaintiff should prevail, in the absence of evidence subsequently offered by the movant proving the contrary. See City of Aurora exrel. Util. Enter. , 105 P.3d at 615 ; Public Serv. Co. of Colo. , 831 P.2d at 480. The term itself is, however, not so limited, and there is no indication in the decree of any intent to alter the relative burdens required in a retained jurisdiction proceeding.

¶22 Although the term "prima facie case" now commonly appears in distinguishing the relative burdens dictated by Rules 50 and 41 of the federal and state rules of civil procedure, see J.R. Kemper, Comment Note, Power of Court Sitting as Trier of Fact to Dismiss at Close of Plaintiff's Evidence, Notwithstanding Plaintiff Has Made Out Prima Facie Case , 55 A.L.R. 3d 272 (1974), its meaning is not limited so narrowly. Cf. 1 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 3:6 (7th ed. 2017) (explaining that "prima facie case" simply means "a party's obligation to produce sufficient evidence to move the proceeding on to the next stage"). Indeed, when used as a modifier, "prima facie" can also mean "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted." Prima facie , Black's Law Dictionary (10th ed.

2014). Courts have regularly used the term in this broader sense to refer to the quantum of evidence necessary to establish the proponent's cause of action, unless rebutted or proved to the contrary. See, e.g., Del. Coach Co. v. Savage , 81 F.Supp. 293, 296 (D. Del. 1948) ; State ex rel. Herbert v. Whims , 68 Ohio App. 39, 38 N.E.2d 596, 599 (1941) ; Pac. Tel. & Tel. Co. v. Wallace , 158 Or. 210, 75 P.2d 942, 947 (1938) ; In re Fink's Estate , 343 Pa. 65, 21 A.2d 883, 888 (1941) ; see generally 9 John Henry Wigmore, Evidence in Trials at Common Law § 2494 (3d ed. 1940) (explaining that courts use "prima facie case" to indicate either "the duty of producing evidence to get past the judge to the jury" or, alternatively, "a general mass of strong evidence" entitling the proponent to a favorable ruling "if [the opponent] does nothing more in the way of producing evidence"). Especially where, as here, "prima facie" is used to modify the term "facts," rather than "case," and requires that those facts and the existence of injury be "established" by the proponent, the term is more naturally understood, as the water court understood it, in this broader sense, which is consistent with the burdens articulated in C.R.C.P. 41(b).

¶23 As importantly, however, the water court made clear its conclusion that Centennial failed to meet its burden of proof was not based on its assessment of the weight and credibility of Centennial's evidence at all but was instead dictated by its legal determination of the meaning of "injury" in the context of its retained jurisdiction. The water court found that even if the evidence presented by Centennial were fully credited, it nevertheless failed, as a matter of law, to evidence "injury." This ruling effectively amounted to a determination that Centennial failed even to make a "prima facie case" in the narrower sense in which it is typically used with reference to jury trials.

¶24 Rather than offering evidence of a likelihood of future injury, Centennial asserted, and continues to assert, that without access to the specific information describing the proposed replacement supply, as delineated in section 13.1, it is not possible to evaluate whether the proposed source can be used without causing injury, and therefore WAS's failure to strictly comply amounts to a per se injury. As did the water court, referencing in particular other provisions of the decree further protecting objectors by prohibiting reliance on WAS's projections to withdraw until replacement water was actually available, as well as the terms and conditions devised by the Engineer to prevent injury, we reject this assertion. See Simpson v. Yale Invs., Inc. , 886 P.2d 689, 696 (Colo. 1994) ("[I]njury must be demonstrated by evidential facts and not by potentialities.") (internal quotation marks omitted).

¶25 Following the adoption of amended section 37-92-305(8), the recourse for other water users objecting to added sources of replacement water is to invoke the retained jurisdiction of the water court to demonstrate that the plan for augmentation, as decreed and as administered by the Engineer, nevertheless is unlikely to prevent injury to their senior rights. See § 37-92-304(6).

IV.

¶26 Because exercise of the water court's retained jurisdiction was statutorily limited to preventing or curing injury to other water users, and because the evidence presented by Centennial failed to establish that WAS would be unable, under the conditions imposed by the Engineer for approval of the additional sources of replacement water, to deliver augmentation water sufficient to prevent injury to other water users, the water court's dismissal of Centennial's objection is affirmed.