NOTICE: NOT FOR OFFICIAL PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

SCOTT MASCHER, Yavapai County Sheriff, 

Petitioner,

 

v.

 

THE HONORABLE CELE HANCOCK, 

Judge of the SUPERIOR COURT OF 

THE STATE OF ARIZONA, in and for 

the County of YAVAPAI, 

Respondent Judge, 

 

RUTH ELIZABETH GAVER; STATE OF ARIZONA, 

Real Parties in Interest. 

No. 1 CA-SA 16-0015 

Petition for Special Action from the Superior Court in Yavapai County 

No. V1300CR201580129 

The Honorable Cele Hancock, Judge 

JURISDICTION ACCEPTED; RELIEF GRANTED 

COUNSEL 

Yavapai County Attorney's Office, Prescott 

By Benjamin D. Kreutzberg 

Counsel for Petitioner 
2

Shaw Law Firm, PLLC, Cottonwood 

By Sebrina M. Shaw 

Counsel for Real Party in Interest Gaver 

Yavapai County Attorney's Office, Prescott 

By Patti Wortman 

Counsel for Real Party in Interest State 

MEMORANDUM DECISION 

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Patricia A. Orozco and Judge Samuel A. Thumma joined. 

J O H N S E N, Judge: 

¶1 Ruth Elizabeth Gaver has been detained for several months in 

Yavapai County Jail, participating in restoration services pending charges 

of aggravated assault, resisting arrest and riot. During a mid-November 

2015 status conference, Gaver's counsel said that Gaver had been allowed 

use of the jail recreation yard just once and asked the court to order that she 

be permitted "some time in the yard." The court ruled from the bench that 

Gaver was entitled to daily recreation while detained, and issued an order 

that she "shall be allowed outside once a day unless the Jail provides the 

Court and Attorneys with documentation as to why Defendant is not 

allowed outside once a day." 

¶2 The Yavapai County Sheriff, in whose jail Gaver is being 

detained, filed a written objection to the order, Gaver filed a written 

response, and the Sheriff filed a written reply. After oral argument on

January 2016, the court ruled from the bench, affirming its order and stating 

that "not allowing a defendant out once a day is a constitutional violation." 

In its subsequent written order, the court ruled Gaver must be permitted to 

use the jail recreational area for an hour each day "unless the Court receives 

information as to why [Gaver] should not be allowed out of her jail cell and 

into the recreational facility once a day." 

¶3 The Sheriff filed a petition for special action, asking this court 

to vacate the superior court's order. In her response, Gaver urges that we 

accept jurisdiction, arguing the petition presents an issue of statewide 

importance. 
MASCHER v. HON. HANCOCK/GAVER 

Decision of the Court 

3

¶4 This court accepts jurisdiction of the petition because the 

Sheriff, a non-party to the criminal proceeding, lacks an adequate remedy 

at law. Ariz. R.P. Spec. Act. 1(a). We grant relief to the Sheriff because the 

superior court erred by entering the challenged order in a proceeding to 

which the Sheriff is not a party and in the absence of admissible evidence 

of a constitutional violation. 

¶5 Absent proof of a constitutional violation, "the judiciary has 

no authority to usurp the functions of the executive branch." Judd v. 

Bollman, 166 Ariz. 417, 419 (App. 1990). "Courts have limited authority to 

interfere with a sheriff's duties to maintain and operate the county jails 

pursuant to the Arizona Constitution and A.R.S. §§ 11-441(5) and 31-101, 

and then only to determine whether specific constitutional violations exist 

and in doing so to order narrow remedies to correct those violations." Id.

¶6 A criminal defendant may challenge the conditions of 

detention by filing a civil action alleging a violation of her constitutional 

rights. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979); Baker v. Rolnick, 210 Ariz. 

321 (App. 2005). Gaver, however, has provided no authority, and we are 

aware of none, that allows such a claim to be brought in the criminal case. 

The Sheriff is not a party to Gaver's criminal proceeding, and whether the 

conditions of her confinement violate her constitutional rights is not 

properly at issue in that proceeding. The superior court therefore erred in 

ordering the Sheriff to allow Gaver daily recreational time. 

¶7 The court also erred by ruling without receiving any 

evidence. Although the court stated its order was subject to modification 

upon new "information" from the Sheriff, a plaintiff alleging a civil rights 

claim has the burden to offer admissible evidence sufficient to prove the 

violation. See generally Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 

532, ¶ 6 (2003) (when defendant offers immunity defense, plaintiff "bears 

the initial burden of proving a violation of a clearly established 

constitutional or statutory right"). The court in this case erred by basing its 

finding of a constitutional violation solely on a statement by Gaver's 

counsel, without receiving any admissible evidence on the matter. 
MASCHER v. HON. HANCOCK/GAVER 

Decision of the Court 

4

¶8 For the reasons stated, the superior court erred as a matter of 

law in ordering the Sheriff to permit Gaver an hour in the recreation yard 

each day. The court's order to that effect is vacated.