Legal Corner: Updates on League Amicus Briefs
The League assists cities and towns by filing amicus briefs with the appellate courts to support matters important to municipal governments. These “friend of the court” briefs demonstrate to the court that a judicial decision may have serious repercussions on all cities and towns. In the past year, the League has filed four briefs, which are summarized in this article.
Ryan, as Administrator of Estate of Brian McDonald v. Napier, 245 Ariz. 54 (2018):
This case is in response to the Court of Appeals (Division Two) opinion that held a person can sue a police officer for his or her negligent evaluation or decision to use force, contrary to years of established law. Brian McDonald was swerving and driving erratically in Pima County. He failed to cease operation of the vehicle when commanded by law enforcement and continued to drive after spike strips were used on his vehicle. Once he exited the car, a police officer released a K-9 on him since law enforcement had deemed this situation a high-risk stop. The dog held onto Mr. McDonald for 38 seconds and caused injuries. Mr. McDonald filed suit against Pima County and alleged the officer’s evaluation and ultimate decision to use force (before actually using force) was negligent and therefore, the use-of-force justification statutes, which are used as a defense for law enforcement, did not apply to negligence claims. Pima County argued that the case was a battery claim and the efforts to make it into a negligence claim were a means to deprive officers of the justification defense.
The superior court ruled in Mr. McDonald’s favor and the Court of Appeals affirmed the superior court ruling. On August 23, 2018, the Arizona Supreme Court reversed the trial court’s judgment and remanded for entry of judgment in favor of Pima County. The Court found that the superior court and Court of Appeals erred by deciding that Pima County could be liable in negligence for the officer’s intentional release of the dog to bite and hold Mr. McDonald. The only claim supported by the facts is an intentional battery, which Mr. McDonald deliberately neither pled nor tried to the jury. The amicus brief was filed by Nicholas D. Acedo (Stuck, Love, Bojanowski & Acedo, PLC) who wrote the brief on behalf of the 14 remaining county sheriffs (the Pima County sheriff was a party to the suit), the Arizona Association of Chiefs of Police, the Arizona Municipal Risk Retention Pool, and the League – all organizations who have law enforcement personnel that are affected by this case. The Supreme Court’s ruling maintained basic tort principles and recognized the realities confronting police officers who are required to make quick decisions in volatile situations.
City of Surprise v. Arizona Corporation Commission and Lake Pleasant 5000, L.L.C., Harvard Investments, Inc. and Circle City Water Company, L.L.C., Arizona Supreme Court No. CV-18-0137-SA
The City of Surprise (“City”) scheduled a May 2018 election to acquire Circle City Water via friendly condemnation. Prior to the election, Lake Pleasant 5000 L.L.C. filed an action at the Arizona Corporation Commission (“Commission”) to halt the condemnation alleging that it held rights to the water allocation. Within a day of the request, the Commission placed this issue on its docket and determined it had jurisdiction, requiring Circle City Water to file an application with Commission regarding the proposed sale despite interfering with the City’s condemnation authority. The City’s electors subsequently approved the condemnation. The City filed a special action with the Arizona Supreme Court arguing that the Commission does not have jurisdiction in this matter because the courts have proper jurisdiction over condemnation actions and any alleged breach of contract must be addressed by the courts, not the Commission. The League amicus brief was filed in June 2018 and supported the City’s arguments including that the Commission’s actions are establishing a dangerous precedent that future city condemnations involving utilities will require their permission. Oral arguments were heard October 4, 2018 and a decision is pending.
Schires et al. v. Carlat et al, Arizona Court of Appeals No. 1 CA-CV 18-0379
In 2016, the City of Peoria (“City”) was sued by residents represented by the Goldwater Institute who alleged that the City’s economic development agreements with a private university and commercial developer violated the gift clause of the Arizona Constitution. The Goldwater Institute argued for the elimination of the governing body’s deference for what is a public purpose and declared that any economic development impact is an indirect benefit that cannot be used to determine adequate consideration. The superior court granted the City’s motion for summary judgment and the Goldwater Institute appealed. The League filed an amicus brief in December 2018 to demonstrate the wider impact of this decision on other economic development projects in cities and towns throughout the state. The Court of Appeals decision is pending.
Humphrey v. State of Arizona, Arizona Court of Appeals No. 1 CA-CV 16-0570
This case arises out of a motor vehicle crash which occurred on May 14, 2008. Pamela Humphrey and her sister-in-law, Ann Quinn, were driving westbound on Interstate 10, when Pamela swerved to miss a snake in the road, lost control of the vehicle, crossed the median, and collided with a tractor trailer traveling in the eastbound lanes. Pamela and Ann were both killed in the crash. Their surviving family members (“Plaintiffs”) sued the State of Arizona, alleging negligence for its failure to install a median barrier at the stretch of roadway where the crash occurred. The jury found in favor of the Plaintiffs.
The State requested assistance with an amicus brief since two issues affect every public entity. The first issue involves the requirement that a person who has a claim against a public entity must serve a notice of claim to the public entity within 180 days after the cause of action accrued and file the complaint within 1 year from the date the claim accrued. In this case, the superior court allowed the Plaintiffs to file nearly two years after these deadlines and accepted their argument that the claim didn’t accrue until all the evidence was collected – a significantly different standard than when the damaged party realizes he or she has been damaged. The League amicus brief argued that this ruling undermines the legislative policy that requires a claim to be served on a public entity when the cause of action accrues so the public entity can adequately prepare a defense, determine whether a settlement is feasible, and budget for litigation expenses. All public entities are concerned that this ruling will increase the number of lawsuits against government entities and prolong the duration of each case.
The second issue is whether the court erred when it denied absolute immunity to the State. State law affords absolute immunity to an entity for its exercise of “an administrative function involving the determination of fundamental governmental policy” and this includes a “determination of whether and how to spend existing resources, including those allocated for equipment, facilities and personnel.” A.R.S. § 12-820.01(B)(2). The superior court’s ruling effectively found that for the State to claim absolute immunity, it must make a specific median barrier decision for each fraction of roadway. The League amicus brief emphasized that the superior court’s judgment negates absolute immunity because it requires unnecessary and duplicative decisions when any public entity is making a fundamental governmental policy and jeopardizes a government body for engaging in its primary role of policy making. The League amicus brief was filed Jan 2019 and represented cities and towns, fifteen counties, the Arizona Municipal Risk Retention Pool, the Arizona Counties Insurance Pool, and the Arizona School Risk Retention Trust. The litigants have cross-claimed on other matters, so it will be several months before a decision is issued.
Conclusion
The League’s amicus brief filings provide a glimpse into the types of lawsuits around the State that affect cities and towns. The process for requesting an amicus brief includes contacting the League General Counsel, providing the necessary lower court filings, and sharing a summary of the issues including how the litigation impacts all cities and towns. The League General Counsel and Executive Director review the issue and the 7-member attorney amicus committee’s recommendation when weighing each request. The deadlines are important since there must be enough time to write the brief, especially if the case involves complex issues. For copies of amicus brief filings or more information about the process, please contact the League General Counsel.
