The court of appeals held that a police officer responding to an emergency can be sued for negligence. The court reconstructs and deconstructs Arizona history on governmental liability and immunities. The court rejects two fairly recent decisions, also from Division One, that recognized common law immunities. Spooner v. City of Phoenix, 246 Ariz. 119 (App. 2018), and Jennings v. Agne, 254 Ariz. 174 (App. 2022). This panel referred to Spooner as a wrong turn and Jennings as continuing along the errant course. “Recognizing that we are not bound by those cases, and because we are convinced that both Jennings and Spooner are based on ‘clearly erroneous principles,’ we do not follow them here.” The court cited a workers’ compensation case called Castillo v. Indus. Comm’n, 21 Ariz. App. 465 (1974), discussing the struggle between Division One and Division Two. Here, it’s the same division. To us, we think the Ninth Circuit’s standard may be more acceptable: “In the absence of intervening Supreme Court precedent one panel cannot overturn another panel, regardless of how wrong the earlier panel decision may seem to be.” Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2021). We expect a petition for review.

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Judges are reluctant to dismiss cases against public entities for failure to comply with the notice of claim statute. There have been well over a hundred plus cases since Deer Valley. The Arizona Supreme Court hasn’t backed off. Once again, the court clarified that compliance requires a sum certain. This means there should be no need to guess or investigate. When the sum certain is ambiguous in the notice of claim, or the public entity has to figure it out, the plaintiff hasn’t complied. This particular notice stated the sum certain as “one hundred thousand dollars ($250,000).” Oops. The court of appeals relied on contract principles to determine intent and held that the number was subordinate to the words, and therefore, we should ignore the $250,000 and go with the one hundred thousand dollars. The Arizona Supreme Court vacated the court of appeals’ decision without much pause. The statute demands strict compliance not an investigation into contract principles or intent. The statute continues to be a tripwire for plaintiffs. Why do legal minds struggle with keeping it simple even when interpreting plain statutory language?

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There is a riddle of two doors, one leading to freedom and one to prison. There is one guard at each door. One guard always tells the truth, and the second guard always lies. You get to ask one question to either guard. What one question could you ask that, regardless of whether you ask the truthteller or liar, would determine which door leads to freedom?

After you figure that out, then you are well-prepared to read the Arizona Supreme Court’s decision holding that a claim for wrongful institution of civil proceedings can be based on a bar complaint. Or skip it and just realize that there is yet another reason for attorneys not to report bad conduct to the State Bar. There is more enjoyment in reading Justice Montgomery’s dissent:

The majority’s analysis demonstrates that textualism unmoored from original public meaning can produce results that conflict with a provision’s original meaning. And that is not how this Court interprets the law. Whenever the meaning of a provision is in question, it is critical to confirm the meaning at the time the provision was adopted.

And even more enjoyment comes from reading the article he cites: Lawrence Solum, Surprising Originalism: The Regula Lecture, 9 ConLawNOW 235 (2018). It’s free online.

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