(Cite as: 178 Ariz. 591, 875 P.2d 824)
The STATE of Arizona, ex rel. Terence C. HANCE, Coconino County Attorney,
ARIZONA BOARD OF PARDONS AND PAROLES, Respondent,
Eric M. MAGEARY, Doc. # 33417, Real Party in Interest.
No. 1 CA‑SA 93‑0181.
Court of Appeals of Arizona,
Division 1, Department A.
Oct. 26, 1993.
Review Denied July 6, 1994.
The State of Arizona, appearing through the Coconino County Attorney and
acting on behalf of a crime victim [FN1], brought this special action
petition requesting that we vacate an Arizona Board of Pardon and Paroles
order releasing prisoner Eric Mageary to home arrest. By prior order, we
accepted jurisdiction, set aside the Board's order releasing Mageary to home
arrest, and directed the Board to conduct a reexamination proceeding [FN2]
in accordance with the Arizona statutes implementing the Victims' Bill of
Rights. [FN3] Our order stated that an opinion would follow. This is the
FN1. "At the request of the victim, the prosecutor may assert any right to
which the victim is entitled." Ariz.Rev.Stat.Ann. ("A.R.S.") § 13‑ 4437(C)
FN2. A reexamination hearing is the remedy provided by A.R.S. section
13‑4436(C) (Supp.1992) for violation of the victim notice provisions of the
Victims' Bill of Rights.
FN3. The Victims' Bill of Rights is a constitutional amendment approved by
Arizona voters November 6, 1990 and effective November 26, 1990. Ariz.
Const. art. 2, § 2.1. Statutes implementing the constitutional provision
generally became effective January 1, 1992, except for A.R.S. section
13‑4436, which was effective July 1, 1992. See A.R.S. § 13‑4401 to ‑ 4437
The central issue is whether the victim of Mageary's crime is entitled to
have a Board of Pardons and Paroles order set aside for failure to include
her participation in the release proceedings despite the victim's failure to
request notification of the proceedings. We hold today that, as a result of
the state's failure to notify the victim of her rights under the Victims'
Bill of Rights, the victim's failure to request notice is not dispositive
and the Board's release order must be vacated.
The facts relevant to this special action begin with Mageary's rape of the
victim and his subsequent conviction and sentencing in 1974 to 25 years to
life in prison. From 1982, when Mageary first became eligible for parole,
to 1989, the Arizona Board of Pardons and Paroles denied Mageary parole each
time he became eligible. The Board granted Mageary parole in 1989 but
revoked it within a year for a parole violation. The Board continued to
deny Mageary parole each time he became eligible from 1989 to 1993.
On May 5, 1993 the Board held the parole hearing that is the subject of
this special action. At that hearing, the Board again denied Mageary parole
but did grant release to home arrest. [FN4]
FN4. Home arrest is authorized by A.R.S. section 31‑236.
The victim did not receive prior notice of the May 5 hearing. The Board
last attempted to contact the victim in June of 1984 when it sent notice of
an upcoming parole hearing to her last known address. [FN5] The letter was
returned as undeliverable. Since 1984, neither the Board nor the County
Attorney made any attempt to notify the victim of any parole hearings,
including the 1993 hearing that resulted in the release order.
FN5. This notice apparently was sent pursuant to former A.R.S. section 31‑
411(G), which required victim notification. See Borchers v. Arizona Bd. of
Pardons and Paroles, 174 Ariz. 463, 851 P.2d 88 (Ct.App.1992).
Shortly after the 1993 hearing, the Governor of Arizona wrote to the Board
chairman requesting that the Board rescind its decision. The Governor based
his request on a Board policy that permits a request for rescission based
on, among other things, an allegation that the Board made its decision **827
*594 on incomplete information. [FN6] The Governor asserted that new
information‑‑including a letter from the victim‑‑was available and requested
a Board hearing to determine if probable cause existed to rescind the
Board's decision. [FN7]
FN6. Arizona Board of Pardons and Paroles Policy 400.07(B)(3) provides
the process for rescinding a Board's order: "A request for rescission
may be made ... [on the] ground[ ] that the information available to the
Board when the status was granted was inaccurate or incomplete."
FN7. Board Policy 400.07(F) provides: "A probable cause hearing shall be
held within a reasonable time period after the request for rescission is
received by the Chair."
The Board did not hold a probable cause hearing. Instead the Board
chairman responded that a "threshold review" of the Governor's request
revealed no new information that justified a rescission hearing.
The Coconino County Attorney also requested rescission and a probable cause
hearing. His letter included a letter from the victim and asserted that the
victim would appear at a probable cause hearing. In addition, the County
Attorney supplied a letter from Mageary's former prison counselor arguing
against his release to home arrest. The County Attorney requested a hearing
to determine if the information supplied probable cause to rescind the
Board's ruling. Nothing in the record reveals whether the Board responded
to this request. [FN8]
FN8. The record also reveals that on June 9, 1993, the Director of the
Arizona Department of Corrections also requested that the Board rescind its
grant of home arrest to Mageary. Nothing indicates whether the Board
responded to this request; it is not an issue in this special action.
Within hours of Mageary's scheduled release to home arrest, the Coconino
County Attorney brought this petition for special action directly to this
Court asking us to set aside the release order and to direct the Board to
hold a reexamination hearing pursuant to both its rescission policy and the
Arizona statutes implementing the Victims' Bill of Rights.
On July 7, we temporarily stayed the Board from releasing Mageary pending
our resolution of the petition. [FN9] After oral argument we accepted
jurisdiction, vacated the Board's order releasing Mageary to home arrest and
directed the Board to hold a reexamination hearing.
FN9. Mageary petitioned the Arizona Supreme Court to vacate our
interlocutory stay. The Supreme Court denied Mageary's request by order
dated July 14, 1993.
Before reaching the merits, we considered whether we have subject matter
jurisdiction to entertain this type of special action‑‑one brought directly
to this court seeking redress against a state agency.
 Prior to a recent statutory amendment, we did not have jurisdiction
over this type of special action. The Court of Appeals was created by
statute. Morrison v. Superior Court, 10 Ariz.App. 601, 602, 461 P.2d 170,
171 (1969); Ariz. Const. art. 6 § 9. Accordingly, our jurisdiction is
limited to that which our Legislature grants. See Goodrich v. Industrial
Comm'n, 11 Ariz.App. 244, 245‑46, 463 P.2d 550, 551‑52 (1970). Before 1990,
the Legislature limited our special action jurisdiction to Industrial
Commission matters and to special actions in aid of our appellate
jurisdiction. See former A.R.S. § 12‑120.21(A)(2)‑(3). [FN10] This statute
did not grant jurisdiction over a special action seeking extraordinary
relief against a state agency or official because it is not in aid of our
appellate jurisdiction. See Goodrich, 11 Ariz.App. at 245‑46, 463 P.2d at
551‑52; Berry v. Superior Court, 163 Ariz. 507, 508, 788 P.2d 1258, 1259
FN10. Section 12‑120.21 read:
The court of appeals shall have:
2. Jurisdiction to issue writs of certiorari to review the lawfulness of
awards of the industrial commission and to enter judgment affirming or
setting aside the awards. 3. Jurisdiction to issue injunctions, writs
of mandamus, review, prohibition, certiorari and other writs necessary and
proper to the complete exercise of its appellate jurisdiction.
In 1990, however, the Arizona Legislature expanded our special action
jurisdiction. It amended section 12‑120.21 by adding subsection (A)(4),
which gives this court "[j]urisdiction *595 **828 to hear and determine
petitions for special actions brought pursuant to the rules of procedure for
special actions, without regard to its appellate jurisdiction." A.R.S. §
12‑120.21(A)(4) (emphasis added). Thus, we now have special action
jurisdiction in cases to which our appellate jurisdiction does not extend.
FN11. For example, we now have jurisdiction over a special action
challenging a superior court's appellate decision of a city magistrate's
evidentiary ruling. See State ex rel. McDougall v. Superior Court, 170
Ariz. 474, 475, 826 P.2d 337, 338 (App.1991).
Some doubt remains about whether the authors of the 1990 amendment intended
to extend our jurisdiction to include a petition seeking redress against a
state officer. See generally 1 ARIZONA APPELLATE HANDBOOK, § 7.3.2
(Jefferson L. Lankford & Paul G. Ulrich eds., 3d ed. 1992). An argument can
be made that subsection (A)(4) was not intended to give us original
jurisdiction in a special action against a state officer because that
meaning renders redundant subsection (A)(2), which gives us original
jurisdiction in special actions involving the Industrial Commission, a state
agency. Although we asked the petitioner to brief the issue, it did not do
 We resolve this issue by holding that subsection (A)(4) gives us
jurisdiction over this special action. While we generally assume the
Legislature intended a meaning other than one resulting in redundancy, State
v. Wise, 137 Ariz. 468, 470, 671 P.2d 909, 911 (1983), the legislative
intent here is clearly reflected by the broad grant of authority in
subsection (A)(4). Had the Legislature intended to limit the expansion of
our jurisdiction to exclude petitions against state officers, it would have
done so without the sweeping language it chose. We give clear statutory
language its usual meaning unless an impossible or absurd consequence
results. In re Marriage of Gray, 144 Ariz. 89, 91, 695 P.2d 1127, 1129
(1985); Matter of Pima County Juvenile Appeal No. 74802‑2, 164 Ariz. 25,
33, 790 P.2d 723, 731 (1990); State v. Wagstaff, 164 Ariz. 485, 490, 794
P.2d 118, 123 (1990). In this instance, the clear language of subsection
(A)(4) grants us jurisdiction which is neither an impossible nor an absurd
result. The Legislature retained subsection (A)(2)‑‑regarding Industrial
Commission special actions‑‑because no change was needed to simply extend
our jurisdiction, a change accomplished by (A)(4). Moreover, retaining
subsection (A)(2) ensured that no one would infer that the amendment
impaired our jurisdiction over Industrial Commission matters. We conclude
that we have jurisdiction over this special action.
 Having the authority to hear the petition, we had discretion whether to
accept it. We accepted jurisdiction to construe previously uninterpreted
provisions of the Victims' Bill of Rights, a matter of statewide
significance, and because resolution of this case turns on questions of law,
not facts. See S.A. v. Superior Court, 171 Ariz. 529, 530, 831 P.2d 1297,
1298 (App.1992) (accepting special action jurisdiction in case concerning
Victims' Bill of Rights).
We turn to the merits. The Coconino County Attorney made two alternative
arguments in requesting that we set aside the Board's order releasing
Mageary to home arrest. He argued first that the Board's own policy
mandates a probable cause hearing upon an allegation that the Board made its
decision without complete information. Therefore, the argument continues,
the Board's chairman was not authorized to summarily refuse to hold a
probable cause hearing after the Governor and the County Attorney requested
rescission. As a remedy, the County asked that we order the Board to hold a
reexamination hearing. [FN12]
FN12. Apparently, the County Attorney equates the rescission hearing under
the Board's policy number 400.07(J) with the "reexamination hearing" under
A.R.S. section 13‑4436(C) (Supp.1992).
 Our decision today is prompted by neither the Governor's nor the County
Attorney's requests for rescission. The Governor is not a party to this
special action. The petitioner is the State of Arizona, through the
Coconino County Attorney, asserting the rights of the crime victim. See
A.R.S. § 13‑**829 *596 4437(C) (Supp.1992). The petitioner has established
no basis on which it may advance the Governor's claim. The petitioner is
not entitled to relief on a claim that the Board refused the Governor's
Nor does our decision depend on the County Attorney's request for a
rescission hearing. Nothing in the record presented to us by petitioner
establishes how or whether the Board responded to the County Attorney's
request. Thus neither the Governor's nor the County Attorney's request for
rescission provides a basis for relief.
We turn our attention to the County Attorney's second argument that the
failure to notify the victim of her constitutional rights under the Victims'
Bill of Rights and, in particular, the failure to notify her of the right to
appear at the release hearing, entitles her to have the Board's order set
The Victims' Bill of Rights‑‑embodied in the Arizona Constitution‑‑and its
implementing legislation give crime victims several affirmative rights,
including the right "[t]o be present at and, upon request, to be informed of
all criminal proceedings where the defendant has a right to be present," and
the right "[t]o be heard at any proceeding involving a post‑arrest release
decision, a negotiated plea, and sentencing." Ariz. Const. art. 2 §
2.1(A)(3)‑(4). The Victims' Bill of Rights also gives victims the right "[t]o
be informed of victims' constitutional rights." Id. § 2.1(A)(12). The
Legislature implemented the Victims' Bill of Rights through the Victims'
Rights Implementation Act, A.R.S. sections 13‑4401 to ‑4437 (Supp.1992).
That Act assigned the obligation of informing victims of their rights to
different departments of the executive branch depending on the stage of the
criminal proceeding. [FN13] The Legislature, however, did not enact a
provision specifically addressing how to inform victims of crimes of their
rights when the crimes were committed prior to the effective date of the
Victims' Bill of Rights.
FN13. For example, as soon as feasible after detecting a crime, "the law
enforcement agency that has responsibility for investigating the criminal
1) Inform the victim of the victim's rights under the victims' bill of
rights, article II § 2.1, Constitution of Arizona, any implementing
legislation and court rules."
A.R.S. § 13‑4405(A)‑(A)(1) (Supp.1992).
The duty to inform the victim of her constitutional rights later shifts to
the prosecutor: "Within seven days after the prosecutor charges a criminal
offense ... and the accused is in custody or has been served a summons, the
prosecutor's office shall give the victim notice of the following:
1) The victim's rights under the victims' bill of rights, article II, § 2.1,
Constitution of Arizona, any implementing legislation and court rule."
A.R.S. § 13‑4408(A)‑(A)(1).
The prosecutor's duties continue, requiring that office to notify the victim
of the conviction, acquittal or dismissal of charges, the sentence imposed,
and all post‑conviction review proceedings and all releases from custody.
See A.R.S. §§ 13‑4410, 4411 (Supp.1992).
The Board of Pardon and Paroles has the duty to inform victims of their
right to appear at post‑conviction release proceedings. See A.R.S. §
 The threshold question is whether victims of crimes committed before
adoption of the Victims' Bill of Rights are entitled to such notification.
The Arizona Supreme Court has specifically held that the Victims' Bill of
Rights applies to cases pending before its adoption. Knapp v. Martone, 170
Ariz. 237, 238‑39, 823 P.2d 685, 686 (1992). The supreme court also held
that the victims of crimes committed before the effective date of the
Victims' Bill of Rights are "victims" for purposes of that Act. 170 Ariz.
at 239, 823 P.2d at 687. The Legislature also has interpreted the
constitution as protecting "all crime victims." Laws 1991, Ch. 229, § 2
(statement of legislative intent in enacting legislation implementing
constitution) (emphasis added). Although the criminal prosecution in this
case concluded before Arizona adopted the Victims' Bill of Rights, Mageary
was in custody and eligible for parole when the constitution was amended.
[FN14] This Court **830 *597 already has decided that the rights granted
under the Victims' Bill of Rights apply to all release proceedings held
after its effective date. See State v. Warner, 168 Ariz. 261, 264, 812 P.2d
1079, 1082 (App.1990). Therefore, we conclude that this victim has the
rights guaranteed by the constitution and the implementing legislation.
FN14. Because the Victims' Bill of Rights gives victims the right to be
notified upon any release including escape, Ariz. Const. art. 2, section
2.1(A)(2), A.R.S. section 13‑4411(B), and to be heard at any post‑
conviction release proceeding, Ariz. Const. art. 2, section 2.1(A)(9), A.R.S.
section 13‑4414(A), the victim has rights whenever the inmate is in the
custody of the Department of Corrections.
The next question is whether this victim was entitled to be notified of the
release hearing despite her failure to request such notice. Perhaps the
clearest explanation of why she was entitled to notice is also the answer to
the Board's argument that it need not have notified her.
 The Board asserts that it had no duty to notify the victim of this
proceeding because the victim did not request notice. The Board is correct
that A.R.S. section 13‑4414 requires victims to request notice before the
Board is obligated to notify them of post‑conviction release hearings:
If the victim has made a request for post‑conviction notice, the board of
pardons and paroles shall, at least fifteen days before the hearing, give to
the victim written notice of the hearing and of the victim's right to be
present and be heard at the hearing.
A.R.S. § 13‑4414(B) (Supp.1992) (emphasis added). The Board is also
correct that this victim never requested notice.
 However, this victim was never informed of her right to request
notice. The Victims' Bill of Rights specifically gives victims the right to
be informed of their rights under that amendment: "a victim of a crime has
a right ... [t]o be informed of victims' constitutional rights." Ariz.
Const. art. 2, § 2.1(A)‑(A)(12). Those constitutional rights include the
right "[t]o be present at and, upon request, to be informed of all criminal
proceedings where the defendant has the right to be present" and "[t]o be
heard at any proceeding involving a post‑arrest release decision...." Id.
at § 2.1(A)(3)‑(4). Thus, the victim had a constitutional right to be
informed that she was entitled to request notice of, and to participate in,
any post‑ conviction relief proceeding.
The state cannot now use the victim's failure to request notice as a
defense against the victim's right to appear at the release proceeding
because the state failed to first fulfill its constitutional obligation to
inform her of that right. The constitutional mandate is clear: victims
must be informed of their rights. Armed with this knowledge, victims may
choose to exercise these rights. Conversely, an uninformed victim may not
exercise her rights because she is unaware of them, or unaware that the
right to notice of a release hearing requires that she first file a request
for such a notice.
 The Victims' Rights Implementation Act also makes clear that the
victim's right to be informed imposes a corollary duty on the state to
provide the information. This legislation creates specific obligations on
state government to inform victims of their rights at various stages of
criminal proceedings. See statutes cited in n. 13, supra. While the
statutory provisions do not specifically address how the state is to inform
victims of pre‑Bill of Rights crimes, the overriding principle is clear:
the linchpin of Ariz. Const. art. 2, § 2.1(A)(12) is the right of victims to
be informed of their constitutional rights, and the state has an affirmative
obligation to so inform them.
This victim was never informed of her constitutional right to request
notice of and to participate in post‑conviction release proceedings. It is
this omission that violated her rights and rendered the release proceedings
We are also unpersuaded by the Board's argument that its efforts to notify
the victim of the release hearing were adequate. Even assuming that notice
of this hearing would have satisfied the mandate of Ariz. Const. art. 2, §
2.1(A)(12) that victims be informed of their "rights" in general, the
Board's efforts to provide notice in this case failed to satisfy the
requirements of due process.
We realize that actual notice is not always possible, and we do not suggest
that the Victims' Bill of Rights insists that victims actually receive
notice in every case. Nevertheless, *598 **831 the Arizona Constitution
protects a victim's rights to "due process." Ariz. Const. art. 2, §
2.1(A). Due process in this context is not explained by the constitution or
by the implementing legislation. However, due process notice requirements
in general are well‑established. Due process does not require actual
receipt of notice:
Notice is sufficient for due process purposes if it is "reasonably
calculated, under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their
objections" or claims.
Matter of Gila River, 171 Ariz. 230, 236, 830 P.2d 442, 448 (1992)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318, 70
S.Ct. 652, 659, 94 L.Ed. 865 (1950)). The Gila River court stated that "due
process required notice by mail to all beneficiaries who could be located
through reasonable efforts." Id.
 The record lacks evidence that the Board made reasonable efforts to
locate this victim. The Board [FN15] admitted that it had made no effort to
contact the victim since it sent a letter to her last known address in 1984,
a decade after the conviction. A complete lack of effort is not "reasonable
efforts" to locate the victim. We do not, however, attempt to define for
all future cases the precise degree and kind of efforts required.
Determining what are "reasonable efforts" requires a case by case analysis.
In this case we are certain that the Board's total lack of effort to contact
this victim was not sufficient.
FN15. The Board and the County Attorney each argued that the other was the arm
of the state obligated to notify the victim of her rights. Neither the
constitution nor the implementing legislation resolves this question. A.R.S.
section 13‑4414(B) provides that the Board must provide notice of a release
hearing if the victim has requested notice. We find it unnecessary to decide,
and express no opinion, whether the Board or the prosecutor‑‑or both‑‑are
bound by Ariz. Const. art. 2 § 2.1(A)(12) to notify victims of pre‑Bill of
Rights crimes of their rights. The fact remains that no agency of the state
gave this victim notice prior to the hearing, and consequently the release
hearing violated her rights.
We now address the argument that the Board emphasized at oral argument. It
asserted that it satisfied its obligation to notify the victim by sending
notice of the upcoming hearings to the County Attorney who, in turn, could
have attempted to notify the victim. It was the County Attorney's fault, the
Board argued, that this victim did not receive notice.
Notifying the County Attorney of the upcoming release proceeding was not
sufficient under the facts of this record. The record fails to show that
either the victim or the prosecutor understood that notice to the prosecutor
would constitute notice to the victim. The victim did not agree to use the
prosecutor as her agent for this purpose; the prosecutor did not agree to
relay the information to the victim. Moreover, the Board's file contains
letters from the County Attorney showing that for many years he had been
unaware of the victim's address.
We also decline to assign blame. The issue is whether the victim received
that which the constitution guarantees: reasonable efforts by the state to
notify her of her constitutional rights and, in particular, the right to
participate in the post‑conviction release process. Nor is it our
responsibility, as the County Attorney requests, to assign among agencies of
the executive branch the duty of notifying victims of their rights. That is
an executive or legislative function. We decide today only that the
constitution gives victims the right to be notified and that this victim's
right to notification was violated. We would needlessly intrude upon the
prerogatives of the other branches of government if we were to do more.
We turn now to the remedy for the violation. If a victim does not receive
notice of a post‑conviction release hearing to which she was entitled, she may
have the results of that hearing set aside and have a new hearing ordered.
A.R.S. section 13‑4436(B) provides:
[T]he failure to use reasonable efforts to provide notice and a right to be
present or be heard pursuant to this chapter at a proceeding that involves a
post‑conviction release is a ground for the victim to seek to set aside the
post‑conviction release until *599 **832 the victim is afforded the
opportunity to be present and be heard.
Section 13‑4436(C) then provides:
If the victim seeks to have a post‑conviction release set aside pursuant to
subsection B, the court, board of pardons and paroles or state department of
corrections shall afford the victim a reexamination proceeding after the
parties are given notice.
The victim, through the Coconino County Attorney, requested that the results
of the hearing be set aside and a reexamination hearing be ordered. The
statutes clearly provide for the relief we have granted.
In sum, this victim enjoys the rights granted under the Victims' Bill of
Rights. Those rights include the right to have the state use reasonable
efforts to inform her that she was constitutionally entitled to request notice
of and to participate in post‑conviction release proceedings. The state did
not meet that obligation. Therefore, it may not use this victim's failure to
request notice as an excuse for denying her participation in the hearing held
on May 5. Because the victim is entitled to and did not receive the notice,
she is entitled to have the release order set aside and to have a new hearing
ordered under A.R.S. section 13‑4436(B) and (C).
VOSS, P.J., and KLEINSCHMIDT, J., concur.
END OF DOCUMENT