§ 7.3.3.5 Orders For Which There Is No Right To Appeal or Which Have Been Characterized As Interlocutory.

• Jurisdiction: Arizona

§ 7.3.3.5 Orders For Which There Is No Right To Appeal or Which Have Been Characterized As Interlocutory. An order for which there is no right to appeal or one that is truly interlocutory in nature provides a compelling reason for the appellate court to accept jurisdiction. Of course, even if there is no right to appeal, the court may nevertheless exercise its discretion to decline jurisdiction in the absence of other reasons to accept jurisdiction, such as clear error or an important issue of law. Below are cases in which the courts have identified orders that are not appealable and thus are examples of the kinds of cases in which appellate courts are likely to accept jurisdiction.

• Interlocutory claim of double jeopardy. I (order itself was not appealable but issue could have been raised on appeal). In Lemke v. Rayes, 213 Ariz. 232, 234-35, ¶ 1, 141 P.3d 407, 409-10 (App. 2006), special action relief was sought from the denial of a motion to dismiss a felony-murder charge before retrial as barred by double jeopardy and collateral estoppel principles. The court relied on State v. Moody, 208 Ariz. 424, 438, ¶ 22, 94 P.3d 1119, 1133 (2004), in which the supreme court stated, “[A] petition for special action is the appropriate vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim. Because the Double Jeopardy Clause guarantees the right to be free from subsequent prosecution, the clause is violated by the mere commencement of retrial.” (Quotation and citation omitted.) See also Peak v. Acuña, 203 Ariz. 83, 50 P.3d 833 (2002) (trial court vacated second-degree murder guilty verdict, and defendant sought special action review of trial court’s decision that she could be retried; supreme court accepted special action jurisdiction after court of appeals declined, and remanded for clarification of trial court’s order vacating verdict stating, “if based solely on the finding that the verdict was against the weight of the evidence, the judge may proceed with a new trial;” if based, in whole or in part, on “a finding that the evidence was insufficient to prove guilt beyond a reasonable doubt . . . then double jeopardy would be applicable and the second-degree murder charge should be dismissed with prejudice”).

• Interlocutory order in child dependency proceeding granting motion for authority to immunize child. In Diana H. v. Rubin, 217 Ariz. 131, 171 P.3d 200 (App. 2007), the court found there was no equally plain, speedy or adequate remedy by appeal and the petition raised a question of law of statewide importance and first impression. Id. at 132, ¶ 1, 171 P.3d at 201. The issue was whether the parent of a child adjudicated dependent had the right to prohibit state-directed immunization of the child based on the parent’s religious belief. Id. The court of appeals accepted special action jurisdiction and found the mother still had a right to direct the religious upbringing of her child, notwithstanding the dependency, and that the state had not shown a compelling interest in inoculating the child. Id.

• Clerk’s refusal to issue marriage license. Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451 (App. 2003) (accepting jurisdiction, but denying relief).

• Order appointing special master for damage phase of bifurcated trial. ChartOne, Inc. v. Bernini, 207 Ariz. 162, 83 P.3d 1103 (App. 2004).

• Denial of right to jury trial. Id.; John C. v. Sargeant, 208 Ariz. 44, 90 P.3d 781 (App. 2004); Campbell v. Superior Court, 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App. 1996).

• Order granting jury trial. In Ariz. Dep’t of Econ. Sec. v. Reinstein, 214 Ariz. 209, 150 P.3d 782...