Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SUE A. KLEIN Assistant U.S. Attorney Arizona State Bar No. 11253 Two Renaissance Square 40 North Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. 192.019 Acres of Land, more or less, located in Yuma County, State of Arizona; Glen G. Curtis, Trustee of Curtis Family Trust; Sam Perricone, Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone and Mary Louise Perricone; Earl O. Zion and Esther E. Zion; Yuma County Tax Assessor, Yuma Hospital District No. 1; Yuma County Citrus Pest Control District; Yuma County Pest Abatement District; Yuma County Flood Control District; Farm Credit Services Southwest; Intangible property rights, Yuma Mesa Irrigation and Drainage District; and Unknown Owners, Defendants. Plaintiff responds to defendants' motion in limine regarding the Arizona Board of Appraisal. CIV-03-2006-PHX-SRB

RESPONSE TO DEFENDANTS' MOTION IN LIMINE REGARDING ARIZONA BOARD OF APPRAISAL

20 The complaint before the Arizona Board of Appraisal is no longer pending, but final, defendants 21 motion in limine should be denied. 22 Memorandum of Points and Authorities. 23 24 25 26 27 28 Respectfully submitted this 19th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein ___________________________ SUE A. KLEIN Assistant U. S. Attorney Plaintiff's response is supported by the attached

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants, in their motion, wish to exclude any reference to Mr. Sanders' complaint and

3 resolution of that complaint before the Arizona Board of Appraisal (Board). Mr. Sanders is 4 listed by defendants as an expert witness who will testify regarding matters contained in his 5 appraisal report including the fair market value and just compensation to be awarded in this case. 6 Mr. Sanders had two actions before the Board. Those actions proceeded together through the 7 state administrative process. In February of 2006, the Board heard oral arguments, voted to 8 accept the Administrative Law Judge's Findings of Fact and Conclusions of Law and issued an 9 Order of Probation. (See Exhibit A, Minutes of February 16, 2006). The Order of Probation 10 found Mr. Sanders in violation of approximately six standards listed in the Uniform Standards 11 of Appraisal Practice (USAP) which standards are the standards of practice adopted by the 12 Arizona State Board of Appraisal. See A.R.S. § 32-3635. Mr. Sanders was advised of, and took 13 the opportunity, to petition for re-hearing. (See Exhibit A, Exhibit B, Minutes of April 20, 2006 14 at p. 9). At its April 20, 2006, meeting, the Board denied Mr. Sanders petition for re-hearing and 15 made final its Findings of Fact and Conclusions of Law and Order of Probation of February of 16 2006. (See Exhibit B). 17 The Order of Probation places Mr. Sanders' Appraisal Certificate No. 30203 on probation

18 until he complies with the terms of the Order. (See Exhibit B). The terms of the Order include 19 completing 55 hours of qualifying education on specific topics and prohibiting Mr. Sanders from 20 supervising other appraisers or teaching appraisal related classes during the period of probation. 21 (See Exhibit A). The Board found Mr. Sanders' violations to be Level III violations. Level III 22 violations are described as "[V]iolations found with substantial errors or series of errors that in aggregate may affect the credibility of the assignment. Minor violations of ethics and/or 23 competency may be found. Violations found rise to the level of affecting the credibility of the 24 assignment." (See Exhibit C, Arizona Board of Appraisal Substantive Policy Statement No. 1). 25 This disciplinary Order places Mr. Sanders' credibility and qualifications at issue and should 26 be admitted for that purpose. An expert who has the opportunity to present an opinion before 27 28
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1 the Court, must submit the rigor of qualifications including technical aspects, his standing in the 2 community and his performance within his profession. Navarro De Cosme v. Hospital Pavia, 3 922 F.2d 926, 933 (1st Cir. 1991). Clearly, the Order of Probation issued by the Board can be 4 used to impeach Mr. Sanders' credibility and qualifications pursuant to Fed. R. Evid. 607, 608, 5 702, 703. 6 In their motion, defendants rely on Ad-Vantage Telephone Directory Consultants, Inc. v. 7 GTE Directories Corp, 37 F.3d 1460 (11th Cir. 1994). In the Ad-Vantage case, however, the 8 court emphasized the fact that sanctions had either been imposed 23 years prior to the action, or 9 not at all. In the present case, the Board imposed sanctions on Mr. Sanders in April of 2006. 10 These sanctions are not part of an ongoing matter, but rather mark the final disposition of the 11 Board. The sanctions imposed by the Board currently limit Mr. Sanders' ability to perform as an appraiser. 12 Federal Rule of Evidence 403 allows for the admission of evidence if its probative value 13 outweighs any potential prejudice, confusion or undue delay. Fed. R. Evid. 403. "In weighing 14 the probative value of evidence against the dangers and considerations enumerated in Rule 403, 15 the general rule is that the balance should be struck in favor of its admission." United States v. 16 Denberg, 212 F.3d 987, 993 (7th Cir. 2000). The probation Order issued by the Board is relevant 17 in the present case as it relates directly to Mr. Sanders' ability and credibility as an expert 18 witness. The probative value of this information outweighs any prejudicial affect it may have 19 on the jury. Further, the jury should be allowed to hear about the Order from the Board as this 20 information goes more to the weight to be given to the evidence rather than to its admissibility. 21 WHEREFORE, the United States respectfully requests that the motion to exclude reference Respectfully submitted this 19th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein SUE A. KLEIN Assistant U.S. Attorney
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22 to Mr. Sanders' action with the Arizona Board of Appraisal be denied. 23 24 25 26 27 28

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CERTIFICATION I hereby certify that on July 19, 2006, I electronically transmitted the attached document to

3 the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 4 Filing to the following CM/ECF registrants: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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John A. Weil Weil & Weil Attorneys at Law 1600 S. Fourth Ave., Ste. C Yuma, Arizona 85364 s/Nancy Stotler ____________________

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