Johnson v. Ryan, No. CV-18-00889-PHX-DWL, 2018 WL 6573228 (D. Ariz. Dec. 13, 2018) (slip copy)
January 03, 2019
Defendant murdered a witness to a robbery that he committed with a fellow gang member. He was convicted of first-degree murder and associated charges, and was sentenced to death. His conviction and sentence were affirmed, and the Supreme Court denied certiorari. The usual approach of respondents in capital habeas cases arising from convictions in Arizona has been to file a motion, premised on the Arizona Victims’ Bill of Rights (AVBR) (which gives victims the right to refuse an interview) and the federal Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771 (which requires that a victim be treated with “fairness and with respect for the victim’s dignity and privacy”) to preclude the petitioner from directly contacting victims and to require the petitioner to route any victim interview request through the Attorney General’s office. Defendant filed a motion for a declaratory judgment precluding the application of the AVBR before the respondents sought an order barring direct contact with victims. Defendant argued that declaratory relief should be provided now, even though his attorneys had not yet attempted to contact any individuals who might be considered victims, because his attorneys would face a threat of discipline from the state bar if they were to initiate such contact without judicial authorization. On the merits, he argued that it would be unconstitutional to apply the AVBR’s no-contact rule to his attorneys in this case because it would violate his First, Sixth, Eighth and Fourteenth Amendment rights. The court denied the motion. First, it found it to be procedurally improper because “there is no such thing as a motion for declaratory relief.” Even if it were procedurally proper, the motion would be premature because there was no actual controversy. “The hypothetical and contingent nature of [defendant’s] asserted injuries suggests that, at least in this case’s current posture, [he] lacks standing to seek the broad declaratory relief requested in his motion and that his request is also unripe.” A final justiciability problem related to whether the CVRA should be construed to preclude habeas petitioners from directly contacting victims: “If federal law authorizes restrictions on conducting such interviews, it would be particularly inappropriate to issue a declaratory judgment concerning the constitutionality of the AVBR—such an opinion would not redress [defendant’s] alleged injuries.” Accordingly, the court denied the motion based on procedural defects and lack of justiciability.