Kathryn H. King

Justice Kathryn King was one of four AZ Supreme Court Justices who voted to uphold Arizona's abortion ban after the Dobbs decision.

Rosenberg v. Sanders, 256 Ariz. 328, 539 P.3d 120 (2023). Authored opinion.

Holding: The Court "affirm[ed] the trial court’s grant of summary judgment in favor of Sanders" and "vacate[d] the court of appeals’ opinion although [the Court]] approve[d] much of [the Court of appeals] reasoning as to the eight McCauley factors." (2) The Court stated, "Although we decline to add a new ninth factor to McCauley, we recognize that a post-execution statement may be relevant in some cases alleging undue influence. But that is not the case here." (2) The Court deemed Brandt’s post-execution statements inadmissible for determining undue influence, as they did not pertain to the relevant time frame.

Background: Alex Brandt signed a beneficiary deed leaving two properties to Marilyn Sanders, but after Brandt's death, his niece, Yvette Rosenberg, sued Sanders, alleging the deed was obtained through undue influence. The trial court granted summary judgment in favor of Sanders. There are eight key factors for determining undue influence in testamentary documents, as outlined in the McCauley case. Here the issue was whether post-execution statements by a grantor should be added as a ninth factor and whether Brandt's alleged post-execution statements are relevant to Rosenberg’s claim of undue influence.

Rule(s): To assess undue influence, McCauley outlined an eight-factor test: fraudulent representations to the testator; hasty execution of the will; concealment of the will's execution; the beneficiary’s involvement in drafting and execution; consistency of the will with prior declarations; the will’s reasonableness given the testator’s circumstances; the testator’s susceptibility to undue influence; and whether a confidential relationship existed between the testator and the beneficiary.

Analysis:

• The Court emphasized that post-execution statements must be evaluated in relation to the testator’s mental state and circumstances at the time the will was executed. This aligns with the principle that undue influence must be assessed based on the testator’s condition at the time of execution rather than at other times, as reinforced by cases such as In re O’Connor’s Estate, 74 Ariz. 248, 257–58 (1952), and In re Harber’s Estate, 102 Ariz. 285, 291–92 (1967). Thus, while post-execution statements can be relevant, they should be used to support the McCauley factors rather than serve as a standalone basis for claims of undue influence.
• The Court addressed the relevance of Brandt's alleged post-execution statements made during his hospitalization in 2018 to the claim of undue influence regarding the 2017 deed. The Court found that the trial court had, in fact, considered these statements before granting summary judgment, despite not specifically addressing them in its decision. The Court found that trial court reviewed all relevant materials, including Rosenberg’s response and the declaration discussing Brandt’s statements. The Court concluded that Brandt’s post-execution statements were not relevant to the question of undue influence. The Court found that the statements pertained only to Brandt’s feelings and mental state at the time of his hospitalization, rather than his state of mind or the circumstances surrounding the execution of the 2017 deed. As established in cases like In re O’Connor’s Estate, 74 Ariz. 248 (1952), and In re Harber’s Estate, 102 Ariz. 285 (1967), evidence must relate to the testator's mental condition at the time the will or deed was executed. Thus, the Court deemed Brandt’s post-execution statements inadmissible for determining undue influence, as they did not pertain to the relevant time frame.

Planned Parenthood Arizona, Inc. v. Mayes, 257 Ariz. 110, 545 P.3d 892 (2024), reconsideration denied, No. CV-23-0005-PR, 2024 WL 2215834 (Ariz. Apr. 26, 2024). Joined the Lopez's majority. Simmer and Brutinel dissented.

Holding: The Court held "that § 36-2322 d[id] not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603, but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 292 (2022). Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603’s operation. Accordingly, § 13-3603 is now enforceable." (4-5) The Court concluded "A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written." (28)

Background: Following the 1973 Roe v. Wade decision, the Arizona Court of Appeals deemed § 13-211, which criminalized abortions, unconstitutional and issued an injunction against its enforcement. After, the legislature did not repeal the abortion statute § 13-211 but instead recodified it as § 13-3603. From 1973 to 2022, the Arizona Legislature enacted numerous abortion laws under Title 36, aligning with federal abortion law established by Roe v. Wade. These laws imposed restrictions on abortions and introduced various procedural requirements for physicians. After the Dobbs decision, former Attorney General Mark Brnovich sought to lift the 1973 permanent injunction against § 13-3603. Planned Parenthood Arizona, Inc. opposed this motion, acknowledging that Roe was no longer a valid basis for the injunction but arguing that any modification should align § 13-3603 with the current abortion laws under Title 36, including § 36-2322.  

The trial court granted the Rule 60 motion, stating that modifying the injunction to account for new laws or grounds not originally in the complaint was procedurally improper. It also found that creating an exception for physicians was inconsistent with the language of A.R.S. § 13-3603, which does not provide for such an exception. Given that the basis for the 1973 injunction was invalidated by Dobbs, the trial court vacated the injunction to permit full enforcement of § 13-3603. Planned Parenthood appealed and requested an emergency stay, which the trial court denied, but the court of appeals later granted the stay pending appeal. 

The court of appeals overturned the trial court’s decision, ruling that physicians who perform abortions according to Title 36 are not liable under § 13-3603. The court found that the trial court had wrongly limited the review of the 1973 injunction and that a comprehensive review should include all relevant statutes, including Title 36. The court concluded there was no inherent conflict between § 13-3603 and Title 36. Instead, it determined that the abortion regulations in Title 36 should take precedence, meaning physicians following these regulations are not at risk of prosecution under § 13-3603.

In this case, the Arizona Supreme Court is interpreting whether recent abortion statutes (A.R.S. § 36-2322) affect the enforceability of an older statute (A.R.S. § 13-3603). Specifically, § 36-2322 limits elective abortions to those performed within fifteen weeks of gestation, but does not itself create a right to abortion or override § 13-3603.

Applicable Law(s):

• "Section 36-2322 provides, in relevant part: A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient’s chart and, if required, in a report required to be filed with the department . . . .B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks." (10)
• A.R.S. § 13-3603 prohibits abortion in Arizona. (Post Dobbs the law is now enforceable; however prior the statute enjoined and unenforceable due Roe.)

See also: Court Order

Avitia v. Crisis Preparation & Recovery Inc., 256 Ariz. 198, 536 P.3d 776 (2023). Signed Bolick's majority.

Holding: The Court, "h[e]ld that the statutory duty to report child abuse or neglect under A.R.S. § 13-3620(A) d[id] not encompass reporting a risk of future harm." (2) The Court "also h[e]ld that mental health professionals owe a duty to third parties based not on foreseeability of harm, but on their special relationship and public policy. Because prior judicial decisions found a duty in such circumstances based on foreseeability, see Hamman v. County of Maricopa, 161 Ariz. 58 (1989) and Little v. All Phoenix South Community Mental Health Center, 186 Ariz. 97 (App. 1996). (2) The Court found that in this case, Crisis Prep complied with its statutory duties by petitioning for involuntary treatment based on its evaluation. Given that the court's prior rulings (Hamman and Little) are overturned and no common law duty remains, the trial court’s summary judgment for Crisis Prep was affirmed.

Background: In this case [the Court was] asked to decide whether mental health professionals have a statutory or common law duty to third parties for harm caused by a patient under their care." (2)  Avitia sued Crisis Preparation and Recovery, Inc. (Crisis Prep) for wrongful death after his twin boys were tragically drowned by their mother, who had a long history of severe mental health issues. The mother had been treated by numerous mental health professionals, including those from Crisis Prep. In 2013, she was evaluated but deemed not seriously mentally ill. By 2014, after a severe psychotic episode, she was involuntarily committed to a behavioral health facility. She was later released in 2015, sought further treatment but was discharged. She late drowned her twin boys. Avitia then filed a wrongful death claim against Crisis Prep, alleging negligence and failure to report or protect the children. The court granted summary judgment in favor of Crisis Prep, finding no statutory duty to report under A.R.S. § 13-3620(A) and rejecting the common law duty to warn or protect based on foreseeability. Avitia appealed, questioning whether the statutory duty included reporting future risks and whether the common law duty to warn remained valid.

Applicable Law(s): "Section 13-3620(A) provides in relevant part: Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor . . . shall immediately report or cause reports to be made of this information to a peace officer . . . . For the purposes of this subsection, 'person' means: 1. Any physician, physician’s assistant, optometrist, dentist, osteopathic physician, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient." (6)

"A progressive nonprofit is working to unseat two Arizona Supreme Court justices who voted to uphold a near-total abortion ban in state law. Justices Kathryn Hackett King and Clint Bolick will be up for retention on the November ballot. On April 9,  they were in the majority of the 4-2 opinion that upheld an 1864 law criminalizing most abortions, with no exceptions for rape or incest." 

See: Sanchez, Camryn. “Progress Arizona Aims to Unseat 2 Arizona Supreme Court Justices Over Near-Total Abortion Ban.” KJZZ, 22 Apr. 2024, 

Timothy B. v. Dep't of Child Safety, 252 Ariz. 470, 505 P.3d 263 (2022), holding modified by Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, 533 P.3d 202 (2023). Joined Chief Justice Timmer's opinion.

Holding(s): The Court reversed the juvenile court’s judgement and remanded the case. The Court vacated the court of appeals opinion.

The Court found issue with the juvenile court not consider whether a permanent guardianship could offer H.B. a “normal home” while Timothy retained his parental rights. The Court stated that "[t]he aunt's home study was positive, showing no concerns, and she [wa]s capable of meeting all of H.B.'s needs.” (11) The Court held that “[o]n remand, the court should evaluate the option of permanent guardianship using the Michael J. factors and other relevant considerations to assess whether H.B. would be deprived of a “normal home” due to Timothy’s incarceration.” 

The Court found that, "[t]he juvenile court ... focused 'solely' on H.B.’s best interests as distinct from Timothy’s interests in making the best-interests determination." (12) The Court found it "[un]clear from the ruling whether the court considered Timothy’s efforts to parent H.B. from prison and the strength of the bond between Timothy and H.B. in determining whether termination would serve H.B.’s best interests." (12) The Court concluded, "when the court considers the availability of a permanent guardianship in deciding whether Timothy’s imprisonment will deprive H.B. of a normal home for a period of years, it may consider as a relevant factor under the guardianship statute whether termination of Timothy’s parental rights would be in H.B.’s best interests. See § 8-871(A)(4). Nevertheless, even if the court concludes that a permanent guardianship is not appropriate and finds the existence of the length-of-sentence ground for termination, it must conduct a renewed best-interests inquiry in making the termination decision. See § 8-533(B)." (12-13)

Background:  This case arose after a Father was convicted of serious crimes and was sentenced to 12.5 years in prison and DCS was unable to reunify H.B. with her mother changing H.B.'s case plan to severance and adoption instead of reunification. "DCS sought to terminate Timothy’s parental rights pursuant to the length-of-sentence ground listedin § 8-533(B)(4)." (3) The juvenile court, after considering Timothy’s efforts to maintain a relationship with H.B. despite his incarceration, determined that Timothy’s inability to provide daily care and his long sentence justified terminating his parental rights under the length-of-sentence ground. The juvenile court focused solely on H.B.'s best interests, concluding that her current adoptive placement met her needs and provided a stable environment.

The Court of Appeals vacated the juvenile courts judgement terminating the father's parental rights. The court of appeals cited two errors: "First, it concluded the juvenile court mistakenly relied on the definition of “normal home” announced in JS-5609, characterizing that definition as overly rigid by failing to recognize “that a ‘normal home’ may include a parent with a non-traditional presence.”  (5) Second, assuming a § 8-533(B) ground exists, the court must decide whether a preponderance of evidence supports a finding that termination is in the child’s best interests." (5) 

This Court "granted DCS’s petition for review to provide guidance on what constitutes a 'normal home' under § 8-533(B)(4) and to clarify the best-interests inquiry, both recurring issues of statewide importance." (5) 

Applicable Law: “The length-of-sentence ground for termination provides, in relevant part, that termination is justified when 'the parent is deprived of civil liberties due to the conviction of a felony . . . [and] the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.' § 8-533(B)(4).” (5-6) 

When interpreting statute the Court aims to “effectuat[e] the legislature’s intent.” (6) “If the statutory language has only one reasonable interpretation when read in context, we apply that interpretation without further analysis. Id. Where more than one reasonable interpretation exists, we employ secondary interpretive principles, such as examining legislative history, any statutes relating to the same subject or general purpose, the effects and consequences of differing interpretations, and the spirit and purpose of the statute. See id.; Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017).” (6)