We all agree that crime victims need to be protected against harassment and other wrongful acts. On the other hand, the “protection” provided in Arizona goes far beyond what may be necessary to shield crime victims from harassment. In fact, the law expressly prohibits a criminal defendant or the defendant’s attorney or investigator from contacting an alleged victim directly; they must do so by request through the prosecutor’s office. A.R.S. 13-4433B, which is the statute that limits contact by the defense, goes further in this regard than any of the other 49 states in the country.
The primary argument against the validity of the law is that it is an unlawful restriction on the First Amendment right to free speech. The law also appears to be unnecessary, in that a victim is free to refuse to speak to an attorney who approaches him or her – in other words, the victim can just say “no.” In addition, there is a major concern regarding the effect of the statute on defense lawyers’ ability to represent their clients and meet their obligation to provide effective assistance to a client facing a criminal charge.
A number of attorneys sued the Arizona Attorney General and others in federal court challenging the law on First Amendment grounds. The District Court dismissed the case, ruling that the plaintiffs did not have “standing” to bring the lawsuit.
What is “Standing” in Federal Court?
Standing to sue relates to whether a party has a discernable interest in the outcome of a case. The standing rules differ from state to state, and federal courts have their own rules on the issue. Under federal law, to have standing to pursue a lawsuit, a plaintiff must have suffered an injury, there must be a causal connection between the injury and the conduct alleged in the lawsuit, and it must be likely that a favorable decision by the court will provide a remedy for the injury.
After the case was dismissed at the trial level, the plaintiff’s appealed the case to the United States Court of Appeals for the 9th Circuit. In its opinion, the court held that the elements of standing had been established by the plaintiffs, and it reversed the decision of the trial court. That decision was appealed to the United States Supreme Court, which refused last month to overturn the 9th Circuit ruling.
Of course, the underlying claim has yet to be decided, and no date has been set for a trial on the merits of the lawsuit.
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028