text:
    Michael Paul MONTANO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0159
    Supreme Court of Wyoming.
    March 25, 2019
    Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel.
    Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   FOX, Justice.

[¶1] Michael Paul Montano pleaded no contest to two counts of second-degree murder and guilty to two counts of mutilation of dead human bodies as part of a plea agreement. The district court accepted his pleas but rejected the agreement's joint sentencing recommendation. Mr. Montano appeals, claiming the State violated the plea agreement when it recommended the agreed-upon sentence, but made negative comments about Mr. Montano's conduct. We affirm.

ISSUE

[¶2] Did the State breach its plea agreement with Mr. Montano by commenting on the evidence?

FACTS

[¶3] Jody Fortuna and Phillip Brewer travelled to Gillette, Wyoming in late August 2016, to see their friend, Michael Montano. They were unaware that, at least in Mr. Montano's mind, the friendship had soured. Several days after the Fortuna and Brewer families reported the men missing, a witness informed law enforcement that she had seen Mr. Brewer's body in the bed of Mr. Montano's pickup truck. Later that day, a deputy found the truck parked near an intersection. As he approached the truck, he "immediately detected a strong foul odor, similar to that of an animal which had been dead for quite some time." He saw dried blood on the truck's tail gate and a blue 55-gallon barrel in the backseat. A search of the truck uncovered two plastic storage totes containing several plastic garbage bags of dismembered male body parts and clothing and documents belonging to Mr. Fortuna and Mr. Brewer.

[¶4] The same day, law enforcement spoke with Mr. Montano's friend, Samson Bears. Mr. Bears reported that Mr. Montano had come to his workplace a few days earlier, asking if he could have one of his blue 55-gallon barrels. When Mr. Bears asked why he wanted one, Mr. Montano responded, "I gotta get rid of some bodies." According to Mr. Bears, Mr. Montano said he had shot Mr. Fortuna and Mr. Brewer, and one of them had "begged like a bitch." Afterwards, he cut up their bodies in his bathtub with a saw. Mr. Bears believed Mr. Montano had killed them because of a conflict over drugs and money. When Mr. Montano stabbed a plastic bag in the back of the truck, Mr. Bears "smelled a strong odor, similar to that of a deer which had been dead for a long time." Mr. Montano also told Mr. Bears that he had stored "brain matter" in a storage unit.

[¶5] Law enforcement searched Mr. Montano's trailer, a motel room where he frequently stayed, and his storage unit. At the trailer, a blood-illuminating substance revealed signs of blood in several areas of the home, and law enforcement found several patched bullet holes and a fired bullet inside one of the walls. A search of the motel room uncovered a gun lock to a Ruger firearm and a list of "cleaning supplies that could be used to clean up the scene of a murder." At the storage unit, law enforcement discovered two more plastic totes containing body parts.

[¶6] After his arrest, Mr. Montano told police he wanted the "death penalty" and that he had "never killed anybody before." He stated that he ran into Mr. Fortuna and Mr. Brewer after he had been using heroin and that they all returned to his trailer home. He claimed he had passed out and the next thing he remembered was being woken up by his girlfriend, Kylee Collins, who had found Mr. Fortuna's and Mr. Brewer's bodies in the bathtub. Mr. Montano told Ms. Collins to leave, saying that he "would take care of it." Mr. Montano said he left the bodies in the bathtub for a few days while deciding what to do and then cut them into pieces, placing the parts in plastic totes. Ms. Collins returned to the trailer home to help him clean, and the two of them drove around with the totes, looking for a place to bury the body parts. Mr. Montano initially denied shooting the men, but during a break in the interview said, "[F]*** it, I did it. I killed em." When asked to clarify the statement he again denied killing them, saying he did not remember pulling the trigger.

[¶7] Mr. Montano and the State reached a plea agreement in which they agreed to jointly recommend concurrent sentences of 51.5 years to life on two counts of second-degree murder and 2.5 years to three years on two counts of mutilation of dead human bodies. In exchange, Mr. Montano agreed to plead no contest to the four counts. At his change of plea hearing, the court asked if the families approved of the agreement. The prosecutor responded: "I don't know that you can say 'approve' ... we were advised ultimately to go forward," but that it was not possible to "fashion a sentence that's reasonable to someone who's lost a loved one." After advising Mr. Montano that the court was not a party to the agreement, and therefore not bound to its sentencing recommendation, the court accepted his pleas.

[¶8] Mr. Fortuna's and Mr. Brewer's families addressed the court at sentencing. Mr. Fortuna's mother recounted how her son and Mr. Montano had been "like brothers, not by blood, but by choice." She told the court she did not believe the plea agreement was justice for either of the murdered men and "begg[ed] the Court for a harsh and just sentence." Mr. Fortuna's sister-in-law testified about the impact Mr. Fortuna's death had on his brother, who had relapsed into alcoholism and was experiencing severe health issues due to alcohol and mental and physical exhaustion. She told the court the possibility of parole was not acceptable to her family and asked it "to consider a harsher punishment of at least consecutive sentences." Mr. Brewer's brother told the court that Mr. Montano's "total lack of remorse" and "disrespect for human remains" caused him to question Mr. Montano's humanity. He asked that Mr. Montano receive "the maximum amount of time allowed," one sentence for each man he murdered and mutilated, "to be served consecutively." His sister asked the court to "weigh the crimes against Phillip and Jody's lives and help our family find some peace" when considering Mr. Montano's sentence.

[¶9] After two witnesses spoke on Mr. Montano's behalf, the prosecutor addressed the court, saying he believed Mr. Montano's acts made him a "monster" and a threat to the community. He told the court he was "present to see what was inside of those totes and to smell what was inside of those totes" when law enforcement opened them, describing it as "a horrific crime." He had "a pretty clear picture" of the facts underlying the mutilation of dead bodies charges, but the second-degree murder charges had been more challenging due to conflicting witness statements and a lack of eyewitnesses. The State took those factors into consideration when reaching a plea agreement with Mr. Montano. The prosecutor also commented on Mr. Montano's presentence investigation report, saying that Mr. Montano was "no stranger to the criminal justice system" and describing some of his previous violent offenses. He then stated, "[O]bviously, the Court can still look at the sentencing criteria to determine what would be the appropriate sentence," but asked the court to "go along with the plea agreement."

[¶10] Before imposing sentence, the court again explained that, although it "more often than not" accepted proposed plea agreements, it was not bound to do so. It then rejected the plea agreement's sentencing recommendation. The court explained that the sentencing recommendation had "the notion of two for the price of one[,]" which was unacceptable because "[t]here were two separate murders [ ], two separate losses, two separate sets of victims[.]" It also explained that it viewed the mutilation charges as distinct from the murders. The court described the effects of the murders and mutilations on Mr. Fortuna's and Mr. Brewer's families as "stunning." It disagreed, however, that Mr. Montano was a "monster," saying "there's a difference between a person being a monster and a person committing monstrous acts, and I think the latter is what we're seeing here." The court then imposed sentences of 60 years to life for each murder and 2.5 to three years for each mutilation, each sentence to run consecutively.

[¶11] After the court imposed sentence, Mr. Montano's counsel made a record concerning the court's rejection of the sentencing recommendation.

[W]hen the State['s] tone at sentencing is one in which they say, well, the Court, you can do what you want to do. Oh, but we want you to impose the plea agreement. The words are that they're abiding by a plea agreement, and I wouldn't even necessarily say that they went overboard in not asking the Court to accept it, but the State's reading, he's calling Mr. Montano a monster. He's claiming other things. And I don't think ... that the State really stood by the plea agreement in spirit.

The court responded that it was very uncommon for it to reject a plea agreement, but that even if the prosecutor had said nothing other than "we are arguing for imposition of the plea agreement," the sentence of the court would have been the very same. It concluded sentencing by telling Mr. Montano that it did not view him as irredeemable, saying "everybody's redeemable in my book."

DISCUSSION

The State did not breach its plea agreement with Mr. Montano by commenting on the evidence.

[¶12] Mr. Montano argues that, although the State recommended the sentence in the plea agreement, it violated the spirit of the agreement in its comments to the court. Thus, the district court should have permitted Mr. Montano to withdraw his guilty pleas or, alternatively, this Court should remand for specific performance of the agreement. The State counters that the prosecutor's comments "were merely a brief, accurate summation of the facts" that did not violate the plea agreement.

[¶13] The parties agree the question of whether the State has breached a plea agreement is a question of law we review de novo. Nordwall v. State , 2015 WY 144, ¶ 13, 361 P.3d 836, 839 (Wyo. 2015). A plea agreement is a contract between the State and the defendant to which we apply general principles of contract law. Mendoza v. State , 2016 WY 31, ¶ 26, 368 P.3d 886, 895 (Wyo. 2016) (citing Deeds v. State , 2014 WY 124, ¶ 14, 335 P.3d 473, 478 (Wyo. 2014) ). To determine whether a breach of a plea agreement occurred we:

(1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. The prosecutor must explicitly stand by the terms of any agreement; and if the State is unable to carry out the terms, the correct remedy is withdrawal of the plea. The State may not obtain the benefit of the agreement and at the same time avoid its obligations without violating either the principles of fairness or the principles of contract law.

Mendoza , 2016 WY 31, ¶ 26, 368 P.3d at 895. As in a contract, courts will not release a party from its obligations under a plea agreement unless another party materially and substantially breaches the agreement. Browning v. State , 2001 WY 93, ¶ 32, 32 P.3d 1061, 1071 (Wyo. 2001). "A material or substantial breach is one that goes to the whole consideration of the agreement." Id. (citing Williams v. Collins Commc'n, Inc. , 720 P.2d 880, 891 (Wyo. 1986) ). When determining whether a breach is material or substantial, we examine several factors, "including the extent to which the non-breaching party will be deprived of the benefit it reasonably expected and the extent to which the breaching party's conduct comports with the standards of good faith and fair dealing." Browning , 2001 WY 93, ¶ 32, 32 P.3d at 1071.

[¶14] Our analysis begins with the terms of the agreement. Mendoza , 2016 WY 31, ¶ 27, 368 P.3d at 895. "If its language is 'clear and unambiguous, [we] must enforce the agreement according to its terms without looking beyond the four corners of the contract.' " Id. (quoting In re CDR , 2015 WY 79, ¶ 25, 351 P.3d 264, 270 (Wyo. 2015) ) (alteration in original). Here, in exchange for Mr. Montano's no contest and guilty pleas, the parties agreed to jointly recommend concurrent sentences of 51.5 years to life on the murder charges and 2.5 years to three years on the mutilation charges. The State made that recommendation. The plea agreement contains no term prohibiting the State from commenting on the evidence. However, Mr. Montano draws our attention to cases finding breaches of plea agreements, despite colorable adherence to their terms.

[¶15] In Herrera v. State , we held that a prosecutor violated a plea agreement under which the State had promised to recommend referral to the "boot camp" program, even when the prosecutor told the court the defendant's young age "demand[ed] a recommendation for boot camp." 2003 WY 25, ¶ 5, 64 P.3d 724, 726 (Wyo. 2003). Immediately following that "recommendation," the prosecutor stated: "I do that with reluctance, however, only trying to abide by the plea agreement so that we don't have to make this into a further legal technicality argument." Id. (emphasis omitted). We concluded the defendant believed the boot camp recommendation "to be an integral, if not a crucial and imperative, term of the agreement reached." Id. at ¶ 13, 64 P.3d at 727. Further, we held the prosecutor's comments violated the standards of good faith and fair dealing because it was apparent that her statements "were meant to purely highlight to the district court that she in reality did not recommend" boot camp. Id. at ¶ 14, 64 P.3d at 728 (emphasis in original).

[¶16] In Ford v. State , we held a prosecutor violated a plea agreement under which the State had agreed to recommend a prison sentence suspended in favor of placement at an alternative treatment program. 2003 WY 65, ¶¶ 12, 14, 69 P.3d 407, 411 (Wyo. 2003). Every alternative treatment program refused to admit the defendant, in part because of his conduct in jail while awaiting trial. Id. at ¶ 5, 69 P.3d at 409. At sentencing, the prosecutor recommended the agreed-upon prison sentence but not its suspension. Id. at ¶ 15, 69 P.3d at 411. The prosecutor commented that the defendant's conduct made the defendant "a bad risk for anything other than the term ... of 5 to 10 at the penitentiary." Id. at ¶ 5, 69 P.3d at 410. The State argued it had fulfilled its obligations under the agreement and was not bound to recommend the suspended sentence because it was made impossible by the programs' refusal to admit the defendant. Id. at ¶ 17, 69 P.3d at 412. We found that the suspension recommendation was an integral part of the agreement and that, in the absence of an agreement to the contrary, both parties bore the risk of the defendant being denied admittance to an alternative program. Id . at ¶¶ 14, 17, 69 P.3d at 411-12. Additionally, we found the prosecutor had "violated the spirit of the agreement" by saying the defendant's behavior made him a bad risk for anything other than imprisonment because it constituted a "legal characterization of facts" and argument on their effect. Id. at ¶ 19, 69 P.3d at 412.

[¶17] These cases are distinguishable. First, the plea agreement in this case did not contain any term, let alone an "integral" one, precluding the State from commenting on Mr. Montano's presentence investigation report or the evidence against him. Instead, the agreement required the State to recommend the agreed-upon sentence, which it did. Although Mr. Montano takes issue with the State asking the court to "go along with the plea agreement," a mere lack of enthusiasm for a sentencing recommendation is "not tantamount to an argument that the recommendation should be disregarded." United States v. Hand , 913 F.2d 854, 857 (10th Cir. 1990). Like the prosecutor here, the prosecutor in Hand reminded the district court that it could "make its own conclusion" in sentencing the defendant before making the recommendation agreed upon in the plea agreement. Id. at 856. The appellate court commented that it "was unnecessary and probably imprudent" to remind the sentencing court of its authority to reject the recommendation but held that it did not constitute a breach of the agreement. Id. at 857. We agree. Although "unnecessary and probably imprudent" to remind the district court of its sentencing authority, the prosecutor's comments did not ask the court to ignore the State's sentencing recommendation, as the prosecutor effectively did in Herrera .

[¶18] Similarly, "[e]fforts by the State to provide relevant factual information are not tantamount to taking a position on the sentence and will not violate a plea agreement." Clingman v. State , 2001 WY 46, ¶ 7, 23 P.3d 27, 29 (Wyo. 2001). In Clingman , we found no error when the prosecutor, who had agreed not to argue for any particular sentence, stated that the defendant's presentence investigation report recommended incarceration because he was "only repeating a recommendation that had been made in a document before the district court." Id. at ¶ 9, 23 P.3d at 29 ; see also Hand , 913 F.2d at 857 (saying sentencing courts "must be permitted to consider any and all information that reasonably might bear on the proper sentence" and that prosecutors generally "must bring all relevant facts to the judge's attention") (internal citations omitted). Unlike in Ford and Herrera , there was no effort to persuade the court to reject the recommendation. See also Hand , 913 F.2d at 856 n.3 ("Merely eliciting factual information or challenging evidence presented by a defendant ... is not necessarily an improper attempt to persuade or convince the sentencing judge to reject the promised recommendation.") cf. United States v. Brye , 146 F.3d 1207, 1211 (10th Cir. 1998) (The government breaches an agreement when "it makes statements that do more than merely state facts or simply validate facts found in the Presentence Report[.]") (alteration omitted). Instead, the State accurately presented its reasons for entering into the agreement, the nature of Mr. Montano's crimes, and his criminal history. Finally, although the prosecutor described Mr. Montano as a monster, he made no argument concerning the effect of that opinion on Mr. Montano's sentence. In any event, the district court rejected that characterization, foreclosing any argument that it impacted the court's decision.

[¶19] The State did not breach the plea agreement, and we therefore affirm.

      Mr. Fortuna's mother and sister-in-law, perhaps referring to the possibility of credit for good time, believed Mr. Montano would become eligible for parole after serving approximately 33 years. ("My son will not return in 33 years."; "[T]he 33-year plea bargain is no justice. Jody does not get to come back to us in 33 years."). The prosecutor informed the court that the plea agreement was for a significantly higher number than 33 years, stated that any issue of parole eligibility would "be taken up by the parole board if they deem fit," and accurately described the sentencing recommendation contained in the plea agreement.

      Mr. Montano also criticizes unnecessary "details" in the State's affidavit of probable cause and its statement that the victims' families had advised it to go forward with the plea agreement because the affidavit "had a tremendously negative impact on the families" and their testimony showed "they were undeniably against the agreement and the recommendation." However, he does not and cannot argue the families' comments could have constituted a violation of the plea agreement. See generally Wyo. Stat. Ann. §§ 1-40-203(xiv), 7-21-103 (LexisNexis 2017) (conferring on victims the right to be notified of the opportunity to make a victim impact statement for use in a defendant's presentence investigation report and at sentencing).


source: Caselaw Access Project

author: VICE CHIEF JUSTICE BRUTINEL, opinion of the Court: BOLICK, J., concurring in part and dissenting in part.

license: Public Domain

text:
    CITY OF SURPRISE, an Arizona Municipal Corporation, Petitioner, v. ARIZONA CORPORATION COMMISSION; Tom Forese, in His Official Capacity As a Member of the Arizona Corporation Commission; Bob Burns, in His Official Capacity As a Member of the Arizona Corporation Commission; Andy Tobin, in His Official Capacity As a Member of the Arizona Corporation Commission; Boyd W. Dunn, in His Official Capacity As a Member of the Arizona Corporation Commission; and Justin Olson, in His Official Capacity As a Member of the Arizona Corporation Commission, Respondents, and Lake Pleasant 5000, L.L.C., an Arizona Limited Liability Company; Harvard Investments, Inc., a Nevada Corporation; and Circle City Water Company, L.L.C., an Arizona Limited Liability Company, Real Parties in Interest.
    No. CV-18-0137-SA
    Supreme Court of Arizona.
    Filed March 28, 2019
    Andrew M. Jacobs (argued), Timothy J. Sabo, Snell & Wilmer L.L.P., Phoenix; and Robert Wingo, Surprise City Attorney, Surprise, Attorneys for City of Surprise
    Andy M. Kvesic (argued), Robin R. Mitchell, P. Robyn Poole, Arizona Corporation Commission Legal Division, Phoenix, Attorneys for Arizona Corporation Commission, Commissioner Tom Forese, Commissioner Bob Burns, Commissioner Andy Tobin, Commissioner Boyd W. Dunn, and Commissioner Justin Olson
    Dale S. Zeitlin (argued), Zeitlin & Zeitlin, P.C., Phoenix; and Garry D. Hays, Law Offices of Garry Hays, Phoenix, Attorneys for Lake Pleasant 5000, L.L.C. and Harvard Investments, Inc.
    Meghan H. Grabel (argued), Osborn Maledon, P.A., Phoenix, Attorney for Circle City Water Company, L.L.C.
    Christina Estes-Werther, General Counsel, League of Arizona Cities and Towns, Phoenix, Attorney for Amicus Curiae League of Arizona Cities and Towns
    VICE CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES TIMMER, GOULD, LOPEZ and PELANDER (RETIRED) joined. JUSTICE BOLICK filed an opinion concurring in part and dissenting in part.
   VICE CHIEF JUSTICE BRUTINEL, opinion of the Court:

¶1 The Arizona Corporation Commission ("Commission") has broad authority under A.R.S. § 40-285(A) to approve the sale or disposition of a public service corporation's assets. In this special action, we hold that § 40-285(A) does not give the Commission power over a city's exercise of eminent domain. Accordingly, we vacate the portion of the Commission's March 30, 2018 order requiring the public utility to apply for Commission approval of the proposed condemnation.

I. BACKGROUND

¶2 In October 2017, the City of Surprise ("City") entered into a letter of intent with Circle City Water Company, L.L.C. ("Circle City"), documenting the City's intent to condemn substantially all the assets of Circle City, including the right to almost four thousand acre-feet of water per year from the Central Arizona Project ("CAP"). Pursuant to statute, Surprise voters authorized the condemnation and the Surprise City Council approved the filing of a condemnation action. A residential developer contends that Circle City is obliged under an existing contract to allocate its CAP water for a planned development. Upon inquiry by the developer, the City advised that it has no obligation to provide water under the existing contract. The developer then asked the Commission to enter an order preventing the sale of Circle City's CAP allocation to the City.

¶3 The Commission opened an investigation. On March 30, 2018, the Commission ordered Circle City to file an application under § 40-285 and Arizona Administrative Code ("A.A.C.") R14-2-402(D), seeking Commission authorization "to abandon, sell, lease, transfer, or otherwise dispose of its utility." At the time of the order, the Commission was aware that the negotiations between the City and Circle City were intended to result in condemnation, not a sale. Circle City filed the application under protest. Commission staff determined that Circle City did not fully comply with the March 30 order by failing to include a copy of the draft condemnation agreement between Circle City and the City. At the Commission's direction, Circle City provided a copy of the draft agreement under seal. The Commission then required Circle City to confirm in writing whether the City would assume Circle City's water contract with the developer.

¶4 Shortly thereafter, the City filed this special action, alleging the Commission acted without jurisdiction in entering the March 30 order. This Court stayed further administrative proceedings pending resolution of this case.

¶5 We accepted jurisdiction over this special action to clarify the scope of the Commission's authority over eminent domain proceedings pursuant to A.R.S. § 40-285(A). We have jurisdiction pursuant to article 6, section 5(1) of the Arizona Constitution and A.R.S. §§ 12-2001 and 12-2021.

II. DISCUSSION

A. Jurisdiction

¶6 This Court has original jurisdiction to issue "mandamus, injunction and other extraordinary writs to state officers." Ariz. Const. art. 6, § 5 (1); see also A.R.S. §§ 12-2001, -2021. Such jurisdiction is discretionary and is requested through a special action petition. Dobson v. State ex rel. Comm'n on Appellate Court Appointments , 233 Ariz. 119, 121 ¶ 6, 309 P.3d 1289, 1291 (2013). Special action jurisdiction is appropriate in cases that involve "purely legal questions of statewide importance" or that require an "immediate and final resolution," id. at 121 ¶¶ 7-8, 309 P.3d at 1291, and particularly appropriate when a defendant "has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority," Ariz. R.P. Spec. Act. 3(b). But special action jurisdiction is not appropriate when parties have an "equally plain, speedy, and adequate remedy by appeal." Id. 1(a).

¶7 Here, the scope of Commission authority involves a purely legal question of statutory interpretation: whether the Commission has exceeded its statutory authority. The City cannot presently appeal the Commission's order because it is not a party to the administrative proceedings, and the City has no other means to challenge the Commission's actions. For those reasons, special action review is appropriate. See Ariz. Corp. Comm'n v. State ex rel. Woods , 171 Ariz. 286, 288, 830 P.2d 807, 809 (1992) (granting special action review because "this court can best serve the public interest and principles of judicial economy by resolving fundamental legal questions regarding the Commission's constitutional power at this time").

B. Standing

¶8 The Commission asserts that the City lacks standing to bring this action and the City's case is not ripe for decision. This Court is "not constitutionally constrained to decline jurisdiction based on lack of standing" because the Arizona Constitution, unlike the Federal Constitution, contains no "case or controversy" requirement. Sears v. Hull , 192 Ariz. 65, 71 ¶ 24, 961 P.2d 1013, 1019 (1998). Whether to deny standing in Arizona is a matter of "prudential or judicial restraint." Dobson , 233 Ariz. at 122 ¶ 9, 309 P.3d at 1292 (quoting Armory Park Neighborhood Ass'n v. Episcopal Cmty. Servs. in Ariz. , 148 Ariz. 1, 6, 712 P.2d 914, 919 (1985) ). Our courts exercise restraint to ensure they "refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between true adversaries." Bennett v. Brownlow , 211 Ariz. 193, 196 ¶ 16, 119 P.3d 460, 463 (2005).

¶9 The Commission argues that because it has taken no action against the City and has not attempted to "regulate the condemnation," the City has not suffered any injury. But its March 30 order requiring Circle City to file an application pursuant to § 40-285"for authority to abandon, sell, lease, transfer, or otherwise dispose of its utility" in the face of the City's proposed condemnation constitutes an injury to the City. While facially directed only at Circle City, the assertion of authority under that statute, if valid, would give the Commission the authority to void the City's condemnation action. Further, standing is suggested by Arizona's declaratory judgment statute, which provides that a party whose "rights, status or other legal relations are affected by a statute" may seek declaratory relief regarding the statute's construction. A.R.S. § 12-1832 ; see also id. § 12-1842 ("This article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.");

Dobson , 233 Ariz. at 122 ¶ 11, 309 P.3d at 1292 ; cf. Merrill v. Phelps , 52 Ariz. 526, 529, 84 P.2d 74 (1938) (noting that action under the declaratory judgment statute was "the simplest and the best way" of resolving conflicting claims regarding statutory and constitutional authority of public officials). The Commission's indirect assertion of regulatory authority over the City is sufficient injury to provide standing.

C. Standard of Review

¶10 We review the interpretation of statutes de novo, seeking to effectuate the legislature's intent. Stambaugh v. Killian , 242 Ariz. 508, 509 ¶ 7, 398 P.3d 574, 575 (2017). If the statute is subject to only one reasonable interpretation, we apply it without further analysis. Id. To make this determination, we look to the statute's words and context. Id. If the statute is susceptible to more than one reasonable interpretation, we consider secondary interpretive principles such as "the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose." State ex rel. Polk v. Campbell , 239 Ariz. 405, 406 ¶ 5, 372 P.3d 929, 930 (2016) (quoting Ariz. Citizens Clean Elections Comm'n v. Brain , 234 Ariz. 322, 325 ¶ 11, 322 P.3d 139, 142 (2014) ).

D. Commission Authority Over Condemnation Proceedings

¶11 The Commission argues it has authority to regulate condemnations under § 40-285(A) and A.A.C. R14-2-402(D). Section 40-285(A) provides:

A public service corporation shall not sell, lease, assign, mortgage or otherwise dispose of or encumber the whole or any part of its railroad, line, plant or system necessary or useful in the performance of its duties to the public ... without first having secured from the commission an order authorizing it so to do. Every such disposition, encumbrance or merger made other than in accordance with the order of the commission authorizing it is void.

A.A.C. R14-2-402(D)(1) provides that "[a] utility shall not abandon, sell, lease, transfer, or otherwise dispose of its facilities or operation without first obtaining authority therefor from the Commission." The City argues § 40-285(A) does not apply because the statutory language does not reference condemnation proceedings and because a condemnation is neither a sale nor other voluntary transfer, as the statute otherwise contemplates. The Commission asserts that the phrase "or otherwise dispose of" is sufficiently broad to include a transfer resulting from a condemnation. Because § 40-285(A) does not expressly include transfers through condemnation proceedings, we must decide whether condemnations are included by the phrase "or otherwise dispose of."

¶12 The Commission's interpretation of "otherwise dispose of" is inconsistent with the context of the statute. "[S]ell, lease, assign" and "mortgage" are all voluntary transactions; a condemnation, in contrast, is an involuntary governmental taking of assets. See United Water N.M., Inc. v. N.M. Pub. Util. Comm'n , 121 N.M. 272, 910 P.2d 906, 909 ¶ 10, 910 ¶ 14 (1996) (rejecting the public utility commission's assumption of jurisdiction over the transfer of utilities from a public utility to a city, reasoning that the statute granting power to the commission contained terms-"sell, lease, rent, purchase or acquire"-addressing only voluntary acts). Even a so-called "friendly" condemnation is ultimately not voluntary because Circle City has no choice but to accede to the taking of its assets pursuant to court order. See A.R.S. §§ 12-1114(1), -1114(6), -1116(A); cf. United Water N.M., Inc. , 910 P.2d at 910 ¶ 15 (stating "a contract or agreement for sale or purchase is a consensual, voluntary relationship" because "both a seller and a buyer have the right to select with whom each will contract, and neither can be forced to agree " (emphasis added) (quotation omitted)). And even if the parties can reach agreement, the City's exercise of the power of eminent domain requires it to pay just compensation for the assets condemned. Ariz. Const. art. 2, § 17 ; Salt River Project Agric. Improvement & Power Dist. v. Miller Park, L.L.C. , 218 Ariz. 246, 249 ¶ 11, 183 P.3d 497, 500 (2008). Agreeing on just compensation rather than litigating the issue makes the condemnation no less coercive.

¶13 Our conclusion is supported by the interpretive canons expressio unius est exclusio alterius and noscitur a sociis . Expressio unius est exclusio alterius -the expression of one item implies the exclusion of others-is appropriate when one term is reasonably understood as an expression of all terms included in the statutory grant or prohibition. Jennings v. Woods , 194 Ariz. 314, 330 ¶ 81, 982 P.2d 274 (1999) ; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). Noscitur a sociis -a word's meaning cannot be determined in isolation, but must be drawn from the context in which it is used-is appropriate when several terms are associated in a context suggesting the terms have some quality in common. See Ariz. Dep't of Water Res. v. McClennen , 238 Ariz. 371, 376 ¶ 26, 360 P.3d 1023 (2015) ; see also Scalia & Garner, supra , at 195-96.

¶14 Applying the expressio unius canon, we infer that the legislature's decision to include the terms "sell, lease, assign," and "mortgage," but not "condemn" or any variant thereof was intentional. Similarly, the doctrine of noscitur a sociis requires us to read the phrase "otherwise dispose of" in light of its surrounding terms "sell, lease, assign" and "mortgage." We decline to stretch the phrase "otherwise dispose of" in § 40-285(A) to cover transfers so markedly different from those the legislature expressly included.

¶15 The Commission has no authority to regulate the City's utilities. See Ariz. Const. art. 15, §§ 2, 3 (excluding municipal corporations from the Commission's regulatory authority); Menderson v. City of Phoenix , 51 Ariz. 280, 283, 76 P.2d 321 (1938) ("We think that no plainer language could have been used by the makers of the Constitution to state that the constitutional powers conferred upon the Corporation Commission, in regard to the government and regulation of public utilities, were not intended to, and did not, include those owned and operated by municipal corporations of any character."). The Commission conceded before this Court that § 40-285(A) neither authorizes it "to participate in the condemnation proceedings" nor requires the City to obtain Commission permission to commence a condemnation. Nevertheless, it argues the statute allows it to order Circle City to provide information regarding its transfer of assets to the City so that the Commission itself can determine whether the transfer falls under its authority.

¶16 But the power to solicit information is nowhere conferred by the text of § 40-285(A), nor did the Commission merely solicit information. And if the Commission is correct that § 40-285(A) applies to eminent domain proceedings in any respect, then, by the plain language of the statute, Circle City must obtain Commission approval to transfer its assets to the City. Failure to obtain Commission approval would render the City's condemnation void. This would effectively create a Commission veto over municipal acquisition of utilities-a result at odds with our constitution's clear exclusion of municipalities from Commission regulation. See Menderson , 51 Ariz. at 283, 76 P.2d 321. The Commission's argument is therefore inconsistent with the statute's language, the Arizona Constitution, and the Commission's own recognition that it may not regulate municipal utilities.

¶17 The Commission's argument is also in tension with legislative intent in enacting § 40-285(A), which was "to prevent 'looting' of a utility's facilities and impairment of service to the public." Babe Invs. v. Ariz. Corp. Comm'n , 189 Ariz. 147, 151, 939 P.2d 425, 429 (App. 1997) (citing Am. Cable Television, Inc. v. Ariz. Pub. Serv. Co. , 143 Ariz. 273, 277, 693 P.2d 928, 932 (App. 1983) ). The constitutional requirement that public property generally be taken only for "public use" already prevents the City from "looting" any public utilities' assets to the detriment of the public. See Ariz. Const. art. 2, § 17 ; City of Phoenix v. Superior Court , 137 Ariz. 409, 411, 671 P.2d 387, 389 (1983) ("[G]enerally no condemning body may exercise the power of eminent domain unless the property which is to be taken is to be put to a 'public use.' "). Applying § 40-285(A) to condemnations would render this constitutional guarantee wholly superfluous.

¶18 We find further support in the California Court of Appeal's interpretation of a statute nearly identical to § 40-285(A). See Am. Cable Television, Inc. , 143 Ariz. at 278, 693 P.2d at 932 (finding § 40-285 consistent with § 851 of California's Public Utility Code). In People ex rel. Public Utilities Commission v. City of Fresno , the California Court of Appeal recognized that "eminent domain is an attribute of sovereignty and must not be restricted by judicial interpretation in the absence of a clear legislative intent to so restrict." 254 Cal.App.2d 76, 62 Cal.Rptr. 79, 84 (1967). The statute in City of Fresno did not "precisely mention the taking of such property by a public entity through the exercise of the power of eminent domain." Id. As such, the statute permitted only a "very weak inference[ ]" that condemnation proceedings required commission approval. Id. The court found this weak inference untenable in light of a more specific statutory provision that "[u]nequivocally empower[ed] a city to condemn public utility property even though it ha[d] already been appropriated to a public use," id. , and concluded that the general statute was therefore not a restriction on the city, nor did it prevent the city from exercising its right of eminent domain, id. at 87.

¶19 Here, as in City of Fresno , any inference of Commission power over eminent domain permitted by § 40-285(A) 's text is untenable in light of the City's express authorization to condemn public utilities. See A.R.S. § 9-511(C) ("The municipality may exercise the right of eminent domain either within or without its corporate limits for the purposes as stated in subsection A ...."); id. § 9-516(B) ("The city or town which seeks to acquire the facilities of a public service corporation shall have the right to do so under eminent domain."). We decline to interpret § 40-285 as granting the Commission power over condemnations, thereby restricting the City's power of eminent domain, without clear legislative intent to do so.

¶20 Lastly, to the extent the Commission argues that A.A.C. R14-2-402(D) confers jurisdiction where the statute does not, we disagree. "The Corporation Commission has no implied powers and its powers do not exceed those to be derived from a strict construction of the Constitution and implementing statutes." Commercial Life Ins. Co. v. Wright , 64 Ariz. 129, 139, 166 P.2d 943 (1946).

¶21 The partial dissent does not dispute that the City has the right to condemn public utilities. Nor does it dispute that if a public utility refuses to cooperate in a sale of its assets, the City may invoke its power of eminent domain. Nonetheless, relying on dicta in a case from another jurisdiction, the dissent draws a line between contested and uncontested condemnations, giving the Commission authority over the latter but not the former. Effectively, the dissent empowers the Commission to veto a municipal corporation's eminent domain decision based only on the determination that it is not sufficiently adversarial. This approach makes sense only if we accept the dissent's selective use of dictionary definitions, see infra ¶ 42 (defining the power of eminent domain by selecting one of six entries for a term, ignoring the more relevant entries with contrary implications), and its strained application of the general terms canon, see Scalia & Garner, supra , at 101-03 (general terms canon instructs that terms like "all persons" and "any property" not be arbitrarily limited, but does not apply when context provides "some indication to the contrary " (emphasis added)). This we decline to do.

¶22 The dissent argues that a "friendly" condemnation, which it understands as one that "bears the indicia of a voluntary sale," is subject to the Commission's jurisdiction under § 40-285(A). Infra ¶ 41. Under the dissent's expansive view, if the condemnee-utility fails to object to either the inevitable condemnation or the amount of the City's monetary offer, the City must obtain Commission approval for the sale. But by drawing a line between contested and uncontested condemnations, giving the Commission authority over the latter but not the former, the dissent misconstrues the power of eminent domain. The government has the right to condemn property for public use irrespective of the condemnee's mindset. And this makes sense: why should a condemnee's willingness to sell his property limit the government's inherent power (and here, the City's express statutory right, see § 9-516(B)) to condemn it? Such a rule would "turn on serendipity," Saban v. Ariz. Dep't of Trans. , 246 Ariz. 89, 94 ¶ 15, 434 P.3d 1168, 1173 (2019), not on law.

¶23 More problematic, the dissent's view would expand the Commission's power well beyond the limits set by our legislature. By claiming that the Commission's "jurisdiction over a public utility is not extinguished until the transfer is complete," infra ¶ 44, the dissent would give the Commission power over the condemnation proceeding itself. Not even the Commission makes this claim.

¶24 The dissent worries that our decision risks leaving Circle City customers (here, the developer) without service. Regardless, our constitution and our legislature bestowed the exclusive authority to regulate municipal utilities upon municipalities, along with the authority to condemn the property of public service corporations. See Ariz. Const. art. 15, §§ 2, 3 (excluding municipal corporations from the Commission's regulatory authority); § 9-511 (empowering municipal corporations to own, operate, and condemn utilities). This Court should not rewrite § 40-285(A) to expand the regulatory authority of the Commission.

¶25 The dissent's related concern that the legislative remedy of issuing a new certificate of convenience and necessity ("CC&N") "may prove illusory" because other providers "might" not exist has no basis in the record and we do not consider it. See State v. Bible , 175 Ariz. 549, 568, 858 P.2d 1152, 1171 (1993) (noting that when "[t]he record does not show" a fact, "we will not speculate" about it).

¶26 The Attorney General opinion, relied on by the dissent, expressly disclaims the dissent's premise by acknowledging that a condemnation divests the Commission of jurisdiction over a utility and its CC & N. Op. Ariz. Att'y Gen. 62-7, at 12 (1962) (stating that "the Commission continues to retain jurisdiction over the utility and its certificate" during the pendency of a voluntary sale to a municipality but "[a]s an alternative procedure, the municipality may of course condemn" the utility to avoid Commission oversight).

¶27 To the extent the dissent suggests the City's proposed condemnation is fraudulent, an abuse of discretion, or otherwise improper with respect to the developer, any remedy for a claim to future water from Circle City is outside the scope of this litigation. We here express no opinion on the merits of such a claim or the remedies in such an action.

¶28 Our decision today does not preclude the Commission from continuing to regulate any portion of Circle City's service area left unserved following the City's condemnation. The Commission can issue a new CC&N to a public utility if the City declines to provide water service to customers in Circle City's service area, including the developer who originally contracted with Circle City. See § 9-516(D) ("[I]f [after the condemnation] the city or town refuses to provide utility service to a portion or part of the area or territory previously authorized to the public utility, the [Commission] may issue a new certificate of convenience and necessity or franchise to a public utility to provide utility service in that portion or part of the area or territory."). The Commission simply has no role to play in condemnations.

III. CONCLUSION

¶29 We vacate paragraph 1 of the Commission's March 30, 2018 order. We deny the City and Circle City's requests for attorney fees.

BOLICK, J., concurring in part and dissenting in part.

¶30 I agree with the majority that the Arizona Corporation Commission has no authority "to regulate the condemnation of water utilities," the narrow question the City presented to us on special action review, and that the City has standing to pursue the action. However, the Court goes further to divest the Commission of authority to protect the interests of water consumers in the event the transfer of the water utility here is actually a voluntary transaction dressed up as an exercise of eminent domain.

¶31 The majority correctly identifies the usual dividing line regarding which governmental acquisitions of private water facilities require Commission approval: if they are voluntary transactions, they do; if they are involuntary transactions effectuated through eminent domain, they do not. Unfortunately, the majority ignores the more difficult question that may be presented here: what happens when the acquisition is voluntary and consummated through eminent domain? The majority holds that the moment a municipality announces its intention to use eminent domain, the Commission's authority to protect water consumers dissolves. I cannot join that holding for it elevates form over substance and defeats important statutory objectives underlying the Commission's jurisdiction.

¶32 I wish I could share the majority's certitude that this scenario is resolved through clear statutory language. But neither the statutes creating the Commission's authority to protect water consumers nor those pertaining to a municipality's eminent domain authority speak directly to this circumstance.

¶33 When two sets of statutes address a situation, we should endeavor to harmonize them and give effect, if possible, to all the provisions. State v. Bowsher , 225 Ariz. 586, 589 ¶ 14, 242 P.3d 1055, 1058 (2010). The majority suggests that, because several other statutes deal with the issue of condemnations generally, it is necessary to rewrite A.R.S. § 40-285(A) for it to have any effect in this circumstance. See supra ¶¶ 19, 24, 28. To the contrary, the eminent domain statutes and the Commission's authorizing statute can both apply here.

¶34 Under § 40-285(A), the Commission possesses authority over a public service company when it "sell[s], lease[s], assign[s], mortgage[s] or otherwise dispose[s] of" its system. The term "otherwise dispose of" is broad enough to encompass a transfer through eminent domain that is the product of voluntary agreement. Indeed, broad general terms, like "otherwise dispose of," must be "accorded their full and fair scope" and may not be "arbitrarily limited." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012). By refusing to recognize "otherwise dispose of" as including a voluntary transfer by eminent domain, the majority ignores the term's expansive breadth and arbitrarily creates an ad hoc exception. See Phillips v. O'Neil , 243 Ariz. 299, 302 ¶ 11, 407 P.3d 71, 74 (2017) (applying general terms canon and noting that courts should not create "ad hoc exceptions" to otherwise broad, general terms (quoting Scalia & Garner, supra , at 101)). Moreover, while the majority invokes the noscitur a sociis canon, it rejects where the canon leads. The noscitur a sociis canon suggests "words grouped in a list should be given related meanings." Scalia & Garner, supra , at 195 (quoting Third Nat'l Bank in Nashville v. Impac Ltd. , 432 U.S. 312, 322, 97 S.Ct. 2307, 53 L.Ed.2d 368 (1977) ); see also Estate of Braden ex rel. Gabaldon v. State , 228 Ariz. 323, 326 ¶ 13, 266 P.3d 349, 352 (2011) (applying noscitur a sociis canon). "Otherwise dispose of," like the terms that precede it, connotes a voluntary transfer, as the majority recognizes, supra ¶¶ 11-14. Thus, where eminent domain is the product of voluntary agreement, § 40-285(A) applies and the Commission has jurisdiction over the voluntary transfer.

¶35 Although municipal power to acquire public utilities through eminent domain is unquestioned, see A.R.S. § 9-516, nothing in the eminent domain statutes expressly divests the Commission of authority to investigate the nature of the transaction or to protect the public's access to water before the acquisition. The majority correctly states that the Commission has no jurisdiction over municipal water facilities after the assets are acquired; but even then, the Commission retains authority to assure continuation of service through a new CC&N if the municipality fails to serve all prior customers under § 9-516(D). See supra ¶ 28.

¶36 Indeed, the enabling statute conflates eminent domain and voluntary acquisition. Section 9-515(A) provides that before "constructing, purchasing, acquiring or leasing" a facility for customers who are already served by a public utility, the municipality "shall first purchase and take over the property and plant of the public utility." Regardless of how the acquisition is effectuated, "[t]he fair valuation of the public utility shall be the equivalent of the compensation to be paid for the taking of private property for public use," as determined by agreement between the municipality and the public utility, by arbitration, or by a court in the eminent domain context. § 9-515(C).

¶37 The best explanation of how the Commission's authority relates to the acquisition of private water companies is provided by a 1962 Attorney General opinion, which although not legally binding is illuminating, especially in the absence of directly applicable Arizona case law. Op. Ariz. Att'y Gen. 62-7 (1962). See Benevolent & Protective Order of Elks #2656 v. State ex rel. Dep't of Liquor Licenses & Control , 239 Ariz. 121, 125 ¶¶ 26-27, 366 P.3d 1011, 1015 (App. 2016) (relying on Attorney General opinion in interpreting statute in absence of relevant case law (citing Ruiz v. Hull , 191 Ariz. 441, 449 ¶ 28, 957 P.2d 984, 992 (1998) )). The opinion observes that although § 40-285 's main purpose is to prevent looting of assets, the statute also ensures that "the rights of the customers of the utility will be adequately protected." Op. Ariz. Att'y Gen. 62-7, supra , at 12; see also Babe Invs. v. Ariz. Corp. Comm'n , 189 Ariz. 147, 151, 939 P.2d 425, 429 (App. 1997) ("The legislature enacted A.R.S. section 40-285 to prevent 'looting' of a utility's facilities and impairment of service to the public ." (emphasis added) (citation omitted)). Consequently, when a municipality seeks to acquire the assets of a public utility "by negotiation[,] ... [b]efore [the seller-utility] can become a party to a valid agreement it must secure permission of the Corporation Commission under A.R.S. § 40-285." Op. Ariz. Att'y Gen. 62-7, supra , at 11-12.

¶38 The majority deems that analysis irrelevant because it views the transaction here as inherently involuntary, noting that the Attorney General opinion itself states that "[a]s an alternative procedure, the municipality may of course condemn as provided in A.R.S. § 9-515(C)(3), by court action." Id. at 12. But the opinion emphasizes that "[u]ntil [the public utility company] is relieved by the Commission of its duties, and the [CC&N] is retired, it is subject to the Commission's regulation." Id. at 11. In the interim, between the time the municipality begins the process of obtaining the public utility's assets and the culmination of that process, the Commission has the authority to ensure "that there are no other customers or persons who have been served by the private utility and that it will, in fact, have been relieved of all its duties to serve such customers." Id. at 14. Specifically, "[t]he duties and powers of the Commission are limited to the necessary hearings and orders to make sure that sale by the utility will not leave persons served neither by the utility nor the municipality."Id. at 12; see also Pueblo Del Sol Water Co. v. Ariz. Corp. Comm'n , 160 Ariz. 285, 286, 772 P.2d 1138, 1139 (App. 1988) ("[T]he Commission should examine all the evidence available to it to determine whether or not the transfer is detrimental to the public interest."). It appears that is exactly the role the Commission was attempting to fill in this case.

¶39 In November 2013, Circle City initiated an action before the Commission to remove the development from its CC&N, which would divest the developer of any CAP water rights. Circle City alleged that the developer had abandoned the project. The Commission rejected Circle City's application, finding that the developer had not abandoned the project. Only thereafter did the City initiate condemnation proceedings, and it has taken the position that it has no obligation to provide the developer with water service.

¶40 If the City and Circle City voluntarily entered into eminent domain proceedings in order to divest the developer of valuable water rights, there could be a collision between the City's eminent domain powers, which are beyond the Commission's jurisdiction, and the Commission's broad authority under § 40-285(A) that ensures that customers' service rights are protected in a voluntary transfer of assets. In such circumstances, the remedy of approving a new CC&N under § 9-516(D) may prove illusory because no other provider might exist to provide such services; only the remedy of disapproval would preserve the customers' rights. See Babe Invs. , 189 Ariz. at 151, 939 P.2d at 429 (noting § 40-285"prevent[s] ... impairment of service to the public"). And the "public use" requirement of eminent domain, Bailey v. Myers , 206 Ariz. 224, 230 ¶ 23, 76 P.3d 898, 904 (App. 2003), is not a substitute for the public-interest objectives served by § 40-285(A). Reading the statutes to permit a municipality and a water company to extinguish contracted water services by agreeing to proceed through eminent domain rather than a sale of assets would defeat the important consumer protection purpose of § 40-285(A). See James P. Paul Water Co. v. Ariz. Corp. Comm'n , 137 Ariz. 426, 429, 671 P.2d 404, 407 (1983) ("[T]he public interest is the controlling factor in decisions concerning service of water by water companies.").

¶41 Although ordinarily the exercise of eminent domain is coercive and involuntary, a "friendly condemnation," which is widely recognized in the law, is one "in which the condemnee desires the condemnation as ardently as does the condemnor," a situation in which "important community concerns may receive short shrift." E. Thirteenth St. Cmty. Ass'n v. N.Y. State Urban Dev. Corp. , 84 N.Y.2d 287, 617 N.Y.S.2d 706, 641 N.E.2d 1368, 1372 (1994) ; see also St. Joe Corp. v. McIver , 875 So.2d 375, 378 n.1 (Fla. 2004) ("In a friendly condemnation, the State agrees to condemn property that the owner desires for the State to condemn, and the State buys the property at an arms-length negotiated price."). The concept of friendly condemnation encompasses not only situations where the parties agree to the terms of condemnation, which happens frequently, but also the far more troubling situation where the parties agree to invoke eminent domain to divest the Commission of its duty and authority to protect utility consumers' water rights. In the latter situation, the transaction as a whole is entirely voluntary (even if some terms are disputed) yet clothed in the façade of a government power that otherwise is by its nature coercive. Indeed, a friendly condemnation bears the indicia of a voluntary sale.

¶42 In contrast, eminent domain is "the sovereign right of the state to appropriate private land for the public good, subject to the constitutional limitation that the property owner is justly compensated." Calmat of Ariz. v. State ex rel. Miller , 176 Ariz. 190, 193, 859 P.2d 1323, 1326 (1993) (emphasis added). The verb "appropriate" commonly means "to take without permission." Appropriate , Webster's Third New International Dictionary (3d ed. 2002). If the exercise of the power of eminent domain means to take private property without permission, then a voluntary agreement by the parties to use eminent domain simply cannot be viewed as a true condemnation.

¶43 A decision by the New Mexico Supreme Court that I, like the majority, deem highly persuasive, appears to be the only decision to expressly contemplate this scenario. In United Water New Mexico, Inc. v. New Mexico Public Utility Commission , the court applied a statute similar to § 40-285(A), construing the terms "sell, lease, rent, purchase or acquire" as "address[ing] voluntary acts by a public utility." 121 N.M. 272, 910 P.2d 906, 909-10 (1996). The court held that a "forced condemnation of a utility by a municipality is not a voluntary, affirmative act of that utility," and therefore the public utility commission had no authority over it. Id. In contrast to the apparent situation here, the utility in that case vigorously contested the condemnation. Id. at 911. In fact, the court premised its decision entirely on the involuntary nature of the transaction, and expressly reserved "the issue of a utility agreeing with a municipality to submit willingly to a condemnation action in lieu of a consensual sale simply to avoid" commission approval. Id. at 909 n.4. Like the New Mexico Supreme Court, we should not foreclose a case where the use of eminent domain may constitute a wholly voluntary transaction.

¶44 I agree with the majority that if the acquisition here is involuntary, the Commission has no authority to veto the acquisition. But if the public utility and the City agreed to use eminent domain to avoid a contractual liability, the transaction cannot properly be characterized as involuntary. It was, and still is, unclear whether the City intended to condemn Circle City's public utility assets with or without Circle City's agreement. In other words, as far as the Commission knew, what the City and Circle City were really proposing was a voluntary, arms-length transaction to purchase Circle City under the guise of a condemnation. Section 40-285 assigns to the Commission the responsibility and authority to protect consumers' rights where a public utility seeks to voluntarily transfer its assets. The Commission has the power to investigate to meet this responsibility, and its jurisdiction over a public utility is not extinguished until the transfer is complete. Without the power to investigate, there is no way for the Commission to determine whether a transfer is voluntary-and thus subject to the Commission's jurisdiction under § 40-285-or involuntary, which would take the transfer out of the Commission's jurisdiction.

¶45 The upshot of the majority's decision is this: a municipality may evade the Commission's authority to protect consumers' water rights by substituting an entirely consensual contract with an entirely consensual exercise of eminent domain. But "[l]aw reaches past formalism." Lee v. Weisman , 505 U.S. 577, 595, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). The majority errs in holding that an exercise of a municipality's eminent domain power categorically evaporates the Commission's consumer protection authority even if the transaction is voluntary and designed to eliminate valuable water rights. The parties vigorously dispute whether those rights exist, and the record does not yet illuminate whether the transfer of assets here is truly involuntary. That is because the City launched a preemptive strike to foreclose the Commission's inquiry into that very question. The majority vindicates the City's actions by short-circuiting the Commission's jurisdiction over the public utility which otherwise would have continued until the acquisition was consummated. With great respect to my colleagues, I dissent from the majority's decision to prematurely terminate the Commission's inquiry.

      Although the eminent domain power is broad, it is not boundless, as the majority observes, supra ¶ 17. See Ariz. Const. art. 2, § 17 ; Bailey , 206 Ariz. at 230 ¶ 23, 76 P.3d at 904. Just as a court should look behind the government's bare assertion that a particular exercise of eminent domain is for a public use, so also under the statutes should it determine whether the exercise of eminent domain is truly involuntary in this context.


author: JONES, Judge:

text:
    In re the Matter of Julie Anne QUIJADA, Petitioner/Appellant, v. Michael George QUIJADA, Respondent/Appellee.
    No. 1 CA-CV 18-0118
    Court of Appeals of Arizona, Division 1.
    FILED February 19, 2019
    The Harrian Law Firm, P.L.C., Glendale, By Daniel Seth Riley, Counsel for Petitioner/Appellant
    Law Offices of Heather C. Wellborn, P.C., Lake Havasu City, By Heather C. Wellborn, Counsel for Respondent/Appellee
    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 Julie Quijada (Wife) appeals from the family court's order denying her request for immediate payment of retirement benefits allocated to her in the decree of dissolution of her marriage to Michael Quijada (Husband), relying primarily upon Koelsch v. Koelsch , 148 Ariz. 176, 713 P.2d 1234 (1986). Although Koelsch provides guidance on how to equitably divide retirement benefits at dissolution, it does not authorize a post-judgment alteration to the spouses' agreed-upon distribution. Additionally, where the non-employee-spouse agrees that the community-property portion of retirement benefits will be paid upon distribution to the employee-spouse in a consent decree and stipulated domestic relations order (DRO), the employee-spouse's decision to work past initial retirement eligibility does not justify relief from the agreement under Arizona Rule of Family Law Procedure 85(b)(6). We therefore affirm the order denying Wife's request.

¶2 Husband cross-appeals the order denying his request for an award of attorneys' fees pursuant to Arizona Revised Statutes (A.R.S.) § 25-324(A). Because the court did not abuse its discretion, we affirm the order denying fees.

FACTS AND PROCEDURAL HISTORY

¶3 In September 2009, the parties' eleven-year marriage was dissolved via consent decree. In the decree, the parties agreed to divide the community-property portion of Husband's pension with the Arizona Public Safety Retirement System (APSRS) pursuant to a separate DRO. The DRO, which was signed by both parties and entered the same day as the decree, awarded Wife "as sole and separate property a pro-rata share of [Husband]'s pension [p]ayable directly by the System at the same time and in the same manner payments are made to [Husband]." By its terms, the DRO may be amended "only for the purpose of establishing or maintaining its acceptance to [APSRS] and to supervise the payment of retirement benefits as provided in the Order." Neither party appealed from entry of the decree or DRO.

¶4 Although Husband became eligible to retire in late 2014, he continues to work and contribute to APSRS and plans to do so through at least 2024. In October 2016, Wife petitioned to "enforce" the division of retirement benefits, arguing Husband's decision to delay his retirement impermissibly "blocked [her] from accessing her sole and separate property" and that she was entitled to immediate and direct compensation for that deprivation. After a three-day evidentiary hearing, the family court denied Wife's request and ordered the parties to bear their own attorneys' fees and costs. Both parties timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2).

DISCUSSION

I. Modification of Decree

¶5 The interpretation of an existing decree or court order presents a question of law reviewed de novo . See Cohen v. Frey , 215 Ariz. 62, 66, ¶ 10, 157 P.3d 482, 486 (App. 2007) (citing Danielson v. Evans , 201 Ariz. 401, 406, ¶ 13, 36 P.3d 749, 754 (App. 2001) ). Here, the DRO states that Wife will receive her share of the pension paid "by the System at the same time and in the same manner payments are made to [Husband]." And, the DRO can be modified only to facilitate these terms. Wife nonetheless argues that an employee-spouse who chooses to work past initial retirement eligibility is required, as a matter of equity, to indemnify the non-employee-spouse for the loss of his or her share of otherwise-available retirement benefits. Wife's contention, which essentially calls for a de facto modification of the otherwise unambiguous decree and DRO, is inconsistent with Arizona law.

¶6 When the division of assets is based upon an agreement of the parties, "entry of the decree shall thereafter preclude the modification of the terms of the decree and the property settlement agreement, if any, set forth or incorporated by reference." A.R.S. § 25-317(F). Although a spouse may challenge the method and mechanism by which retirement benefits are valued and divided on appeal, see A.R.S. § 25-325(A) ("A decree of dissolution of marriage ... is final when entered, subject to the right of appeal."), neither party did so here. Accordingly, the terms of the decree and DRO are not subject to post-judgment modification unless the court is satisfied relief is warranted pursuant to Arizona Rule of Family Law Procedure 85(b). See A.R.S. § 25-327(A) ("The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state."); Breitbart-Napp v. Napp , 216 Ariz. 74, 80, ¶ 17, 163 P.3d 1024, 1030 (App. 2007) (holding a property settlement agreement is subject to relief under the civil counterpart to Rule 85 ); Schmidt , 158 Ariz. at 498, 763 P.2d at 994 (same).

¶7 Rule 85(b)(6) permits relief from a final judgment if the moving party shows special circumstances justifying relief. We review the denial of a motion to set aside a decree for an abuse of discretion. Clark v. Kreamer , 243 Ariz. 272, 275, ¶ 10, 405 P.3d 1123, 1126 (App. 2017) (citing Alvarado v. Thomson , 240 Ariz. 12, 14, ¶ 11, 375 P.3d 77, 79 (App. 2016) ).

¶8 Although the family court here was sympathetic to Wife's situation, it found Wife had agreed to the valuation method at the time of dissolution and presented no authority to support her demand for immediate payment from Husband. The order thus tacitly found no circumstances that would justify reopening the decree and DRO. See Great W. Bank v. LJC Dev., L.L.C. , 238 Ariz. 470, 479, ¶ 31 n.9, 362 P.3d 1037, 1046 n.9 (App. 2015) ("[W]e presume the trial court made all findings necessary to sustain the judgment if they are 'reasonably supported by the evidence, and not in conflict with the court's express findings.' ") (quoting Coronado Co. v. Jacome's Dep't Store, Inc. , 129 Ariz. 137, 139, 629 P.2d 553, 555 (App. 1981) ).

¶9 Wife relies upon Koelsch to argue relief from the decree is justified. In Koelsch , our supreme court considered "how and when a non-employee[-]spouse's community property interest in an employee[ ]spouse's matured retirement benefit plan is to be paid when the employee wants to continue working, thus delaying receipt of the retirement benefits." 148 Ariz. at 180, 713 P.2d at 1238. While it is true that Koelsch largely disapproved of an arrangement that would grant the employee-spouse sole discretion to determine when the non-employee-spouse received his or her share of community property retirement benefits, the issue there arose on direct appeal from a decree of dissolution entered following a contested hearing. Id. at 178-79, 183, 713 P.2d at 1236-37, 1241. Thus, Koelsch addressed only whether the family court's original division of community property, entered over the non-employee-spouse's objection, was equitable. See A.R.S. § 25-318(A) (directing the court to "divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind"). It does not apply to a post-judgment modification. The other cases Wife relies upon likewise address the propriety of the original, contested division of community property and do not authorize the court to modify a property allocation made in a consent decree from which no appeal is taken and over which the court did not retain jurisdiction. See Boncoskey v. Boncoskey , 216 Ariz. 448, 167 P.3d 705 (App. 2007) ; Luciano v. Luciano , 104 Cal.App.3d 956, 164 Cal.Rptr. 93 (1980) ; Gemma v. Gemma , 105 Nev. 458, 778 P.2d 429 (1989).

¶10 When spouses settle their property rights by agreement, "if the settlement is fair and equitable, free from fraud and undue influence, the court normally will approve it." Wick v. Wick , 107 Ariz. 382, 385, 489 P.2d 19, 22 (1971) (quoting Smith v. Smith , 71 Ariz. 315, 318, 227 P.2d 214 (1951) ). Here, Wife agreed she would receive her portion of the retirement benefits upon their distribution to Husband. She could have insisted upon a different valuation or distribution method at the time of dissolution - perhaps one whereby she received a Koelsch -type offset payment in the event Husband elected not to retire when first eligible, or one specifying the family court would retain jurisdiction to determine proper division upon maturation. See, e.g., Johnson , 131 Ariz. at 41, 638 P.2d at 708 ; Danielson , 201 Ariz. at 404-05, ¶ 8, 36 P.3d at 752-53. She did not do so even though these options had been approved of in Arizona's appellate courts decades earlier. See Koelsch , 148 Ariz. at 180-82, 185, 713 P.2d at 1238-40, 1243 (detailing the benefits and drawbacks of several methods of valuing retirement benefits under various scenarios before "urg[ing] the parties and the trial court to be as creative and flexible as possible," within the bounds of the law, to balance the rights and expectations of the parties). But the existence of other possibilities does not invalidate the parties' agreement or render it inequitable. Indeed, Wife waived any argument otherwise when she failed to timely appeal the decree. See Porter v. Estate of Pigg , 175 Ariz. 194, 197, 854 P.2d 1180, 1183 (App. 1993) (holding that legal error in a dissolution decree did not affect its validity "but only made it subject to correction by a timely appeal") (citing Auman v. Auman , 134 Ariz. 40, 42, 653 P.2d 688, 690 (1982) ).

¶11 Finally, as to the substance of Wife's equity argument, she fails to prove the terms of the decree or DRO are unfair. Indeed, the decree reflects that Husband assumed the entirety of the parties' debt and received very few assets at the time of the divorce. These circumstances suggest Husband's retention of control over the retirement benefits was indeed a bargained-for exchange and not the product of misconduct that might otherwise justify equitable relief. See, e.g. , Bates v. Bates , 1 Ariz. App. 165, 169, 400 P.2d 593 (1965) (noting equitable relief from a dissolution decree may be justified by conduct that "has prevented a fair submission of the controversy").

¶12 The family court's decision not to modify the decree is consistent with the specific language of the DRO and the "compelling policy interest favoring the finality of property settlements." De Gryse v. De Gryse , 135 Ariz. 335, 338, 661 P.2d 185, 188 (1983) (citations omitted). Wife did not prove post-judgment modification of the prior orders was justified, and we find no abuse of discretion.

II. Request for Attorneys' Fees

¶13 In his cross-appeal, Husband argues the family court erred in denying his request for an award of attorneys' fees and costs in contesting Wife's motion. Section 25-324(A) permits an award of fees if appropriate "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." See also Ariz. R. Fam. Law P. 69(c) (authorizing an award of the costs and expenses incurred defending a challenge to the validity of an agreement upon consideration of A.R.S. § 25-324 factors). We review the denial of a request for fees under A.R.S. § 25-324 for an abuse of discretion. Murray v. Murray , 239 Ariz. 174, 179, ¶ 20, 367 P.3d 78, 83 (App. 2016) (citing Magee v. Magee , 206 Ariz. 589, 590, ¶ 6, 81 P.3d 1048, 1049 (App. 2004) ). In doing so, we defer to the court's factual findings so long as there is competent evidence to support them. See Vincent v. Nelson , 238 Ariz. 150, 155, ¶¶ 17-18, 357 P.3d 834, 839 (App. 2015) (citing Hurd v. Hurd , 223 Ariz. 48, 52, ¶¶ 16, 19, 219 P.3d 258, 262 (App. 2009), and Goats v. A. J. Bayless Mkts., Inc. , 14 Ariz. App. 166, 169, 481 P.2d 536 (1971) ).

¶14 Before denying the fee request, the family court found "there was considerable merit to [Wife]'s position, even if [Husband] is the prevailing party, and that [Husband] is in the superior economic position (especially as it relates to the DRO and his pension benefits)." The court further noted it did "not desire to deter similarly situated litigants from pursuing their meritorious, even if ultimately unsuccessful, claims."

¶15 Husband argues the reasonableness finding is inconsistent with the family court's prior questioning regarding the basis of Wife's disclosure requests. But "[a]ppeals lie from findings of fact, conclusions of law, and judgments, not from ruminations of the trial judge." United Cal. Bank v. Prudential Ins. Co. of Am. , 140 Ariz. 238, 308, 681 P.2d 390, 460 (App. 1983). Moreover, the court's uncertainty regarding the procedural posture of Wife's request does not contradict its finding that she acted reasonably in pursuing a claim otherwise available to her under Rule 85(b). Nor does an award of fees in a domestic relations matter turn upon a party's success or failure. See Cummings v. Cummings , 182 Ariz. 383, 388, 897 P.2d 685, 690 (App. 1994) (declining to award attorneys' fees to the prevailing party where the parties had equal financial resources and the non-prevailing party presented a novel legal question).

¶16 Husband also argues the family court erred in concluding he was in the superior economic position because Wife works as a licensed aesthetician and shares her living expenses. Reasonable evidence nonetheless supports the court's resolution of the parties' relative financial resources based upon the evidence that Husband earns approximately twice Wife's monthly wage.

¶17 Finally, we note that the fee-shifting provisions of A.R.S. § 25-324 are intended to "insure that the poorer party has the proper means to litigate the action, not to punish litigants." Garrett v. Garrett , 140 Ariz. 564, 569-70, 683 P.2d 1166, 1171-72 (App. 1983) (citing Countryman v. Countryman , 135 Ariz. 110, 111, 659 P.2d 663, 664 (1983) ). Husband makes no suggestion that he lacks the means to defend Wife's claims. Moreover, the family court specifically considered this purpose. On this record, we find no abuse of discretion.

CONCLUSION

¶18 The family court's orders are affirmed.

¶19 Husband requests his attorneys' fees and costs incurred on appeal pursuant to A.R.S. §§ 12-341 and 25-324(A). In our discretion, we deny his request for fees. However, as the prevailing party, Husband is awarded his costs incurred on appeal upon compliance with ARCAP 21(b).

      Although this rule was numbered 85(C) at the time of these proceedings, the text of the rule remained unchanged with the 2019 amendments. For ease of reference, we cite the current version of the rules.

      We view the evidence "in the light most favorable to supporting the decision below." Rinegar v. Rinegar , 231 Ariz. 85, 90, ¶ 20, 290 P.3d 1208, 1213 (App. 2012) (quoting Johnson v. Johnson , 131 Ariz. 38, 44, 638 P.2d 705, 711 (1981) ).

      Although Wife did not reference Rule 85(b) in her filings, a party need not file a specific motion to invoke the rule. See Schmidt v. Schmidt , 158 Ariz. 496, 498, 763 P.2d 992, 994 (App. 1988).

      Rule 85(b) provides six circumstances under which relief from a judgment may be warranted. A motion alleging any of the first three grounds must be filed within six months after the judgment is entered and would be time-barred here. See Ariz. R. Fam. Law P. 85(b)(1)-(3), (c)(1). There is no basis to believe the judgment is void, see Ariz. R. Fam. Law P. 85(b)(4), and an order dividing property has no prospective application that would invoke the fifth ground, see Ariz. R. Fam. Law P. 85(b)(5) ; Birt v. Birt , 208 Ariz. 546, 549, ¶ 19, 96 P.3d 544, 547 (App. 2004) (citing DeWeerth v. Baldinger , 38 F.3d 1266, 1276 (2d Cir. 1994) ). Thus, Wife's request can only fall under Rule 85(b)(6).