At an arraignment in city court, a self-represented criminal defendant provided a vulgar email address using the prosecutor’s name. The insult was not recognized until later in the court’s chambers. The court then held the defendant in direct contempt. The defendant filed a special action with the superior court, arguing that the First Amendment applied. The prosecutor argued the words were “fighting words” and unprotected by the First Amendment. The court of appeals held that these were not fighting words and that this was not a First Amendment issue. The court of appeals reversed for different reasons. While a court has the right to control decorum in court, holding someone in criminal contempt requires showing that the defendant willfully disobeyed a court order, obstructed the administration of justice, or lessened the court’s dignity and authority. Ariz.R.Crim.P. 35.1. The court of appeals reaffirmed that offending the “dignity and authority” of the court should be applied with causation. Here, the defendant was not loud or boisterous, did not disrupt the proceeding, and did not harass or intimidate anyone. The city court should also have provided due process, i.e., notice and opportunity to be heard. The concurrence would add that the Eighth Amendment was violated. A sentence of 180 days was grossly disproportionate.

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The Court of Appeals has an immunity allergy. The Court worked hard to tell us that therapists who perform court-ordered treatment and evaluation are not entitled to judicial immunity. We recall the controversial sterilization cases from years ago, when courts recognized judicial immunity and protected not only judges but also the doctors and hospitals who performed the operation. Those decisions may be controversial, but we don’t recall that courts have changed their minds.

As part of his probation for voyeurism, Kapusta was ordered to attend behavioral health therapy. After attending therapy, he was discharged for “displaying minimal commitment to the treatment process,” violating a “group payment policy,” being disrespectful toward staff and therapists, and failing to follow the rules. His therapists reported to probation, and a petition to revoke his probation was filed. At a disposition hearing, the court suspended his sentence, reinstated probation, and extended his probation for six months. Two years later, he sued his therapists, alleging they misrepresented facts to the court and defamed him. The trial court held that the therapists were entitled to absolute immunity, and the Court of Appeals reversed. The Court of Appeals concluded that the defendants are unlike probation officers, who have been entitled to immunity because they are not statutorily required to supervise probationers on behalf of the court. The drafting of the discharge summary, the Court of Appeals concluded, “did not require anyone to exercise discretion or reach a conclusion.” No thought or discretion in discharging or writing reports? There is a dissent that interprets prior cases on judicial immunity differently. Division Two is giving our supreme court more work. And if immunity doesn’t work here, isn’t there a causation problem?

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Because the Municipal Risk Retention Pool is an insurer created under state law and member municipalities, the notice of claim statute applies. A.R.S. § 12-821.01 Plaintiff missed both the notice of claim deadline and the statute of limitations deadlines for claims against public entities. The Court of Appeals affirmed summary judgment for the Risk Pool. The second issue was whether a separate bad-faith claim can be asserted against a third-party administrator. No. The Court of Appeals agreed that there is no contractual relationship between a third-party claim administrator and an insured, and that the insured had no direct claim. There was also no “joint venture.” But, the Court of Appeals concluded that the trial court erred in awarding the administrator attorney’s fees under § 12-341.01. This makes sense when there is no contractual relationship. Apparently, plaintiff’s counsel has lost this same issue in federal district court. The defendant argued that the award of fees should be upheld because the case was frivolous. While the district court case may be persuasive, it is not precedent. The Court of Appeals sent the issue of frivolity back to the trial court. One judge tacked on a concurrence and acknowledged that, although no one raised it, the Risk Pool is a public entity and is therefore subject to the Open Meeting and Public Records law. One may ask, “So, what?” Many public entities have risk departments, claim handlers, and attorneys. Is the judge suggesting that this is all an open book?

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