Wilenchik & Bartness Wins Pro Bono Jury Trial against State of Arizona

Published on September 7, 2012

Attorney Jack Wilenchik of Wilenchik & Bartness defended the Sussex family in a three-day jury trial, pro bono. The State Land Department sought $494,379 in damages from the Sussex family for trespassing on land that their family has continuously occupied since 1892, when their great-grandfather bought it from another settler. Mr. Wilenchik became involved in the case after a Maricopa County judge ruled in 2010 that the State has been the owner of the land since 1912, and that the family therefore has to pay at least nominal damages for common law trespass. After a three-day jury trial that cost the State tens of thousands of dollars, the jury refused to award $494,379 and gave the State only $1,500, or the cost of a permit to cross the land. Mr. Wilenchik says that at least two jurors still wanted to give the State nothing.

Mr. Wilenchik says that the family was unable to afford a lawyer, so he agreed to handle the case pro bono. He says that during its deliberations, the jury essentially asked the judge whether they had to award any damages at all. The judge then instructed them to award at least “nominal” damages, and so the jury awarded the State only $1,500.

According to the Sussex family, they and their ancestors have openly occupied the land at 302 West First Street, Tempe since 1892, when their great-grandfather Jesus Martinez purchased it from another settler. Steven Sussex, age 72, says that he grew up on the property, and that both his father and grandmother were born and died there. According to court documents, the State claims that under the Enabling Act of 1910 the land was granted to the future State of Arizona as part of 10 million acres of state land, but Mr. Wilenchik says that happened without the family’s knowledge, and the State did not file a claim for trespass or quiet title until 2005, when it filed this case. He says that the evidence at trial showed that the State had known of the Sussex’s occupancy and use since at least the 1930’s, when their great-grandmother actually leased part of the land from the State.

Mr. Wilenchik says that the property contains the only road to an adobe home that belonged to the family’s great-grandfather and was built in the 1880’s. He reports that the adobe home is on the national historic registry and is one of only three historic adobe buildings left standing in the City of Tempe, which is one of the oldest cities in Arizona. According to Steven Sussex, Carl Hayden, the State’s first Congressional Representative and one of the longest-serving U.S. Congressmen in history, raised hogs on the property with Mr. Sussex’s Uncle, and during the Great Depression the Sussex family allowed homeless travelers on the adjacent railroad to stay in shacks on the property (one of which still remains). Mr. Wilenchik says that former U.S. Representative and Mayor of Tempe Harry Mitchell went to elementary school with Mr. Sussex, and that the two used to eat dinner at the adobe home when they were children. Mr. Wilenchik says that Mr. Mitchell attended the trial in support of Mr. Sussex.

According to court documents, the State also sued the Sussex family for willful trespass and triple damages (under A.R.S. §§37-501, 502), but Mr. Wilenchik says that the Judge dismissed those claims as unsupported by the evidence halfway through trial.

Mr. Wilenchik says that Steve Sussex served in the Navy for many years and is a veteran of the Vietnam War, before it was even called the Vietnam War. He says that Mr. Sussex is a house painter by trade, and that as a young man he painted the Hayden Flour Mill, a historic downtown Tempe landmark.

See also:

Arizona Republic: http://www.azcentral.com/community/tempe/articles/20120809tempe-family-loses-year-claim-land.html

Tempe, AZ August 16, 2012

Contact: Jack Wilenchik, (602) 606-2810
Maricopa County Superior Court case CV2005-006521